

Opinion issued December 29, 2011


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00034-CV
———————————
The CITY Of houston, Appellant
V.
JESSICA GUNN, Appellee

 

 
On Appeal from the 113th District Court
Harris County, Texas

Trial Court Case No. 2009-58443
 

 
O P I N I ON
          The
City of Houston appeals the trial court’s interlocutory order denying its plea
to the jurisdiction.[1]  In its sole issue, the City contends that the
trial court erred in denying its plea because it has immunity pursuant to
subsection (b) of the election-of-remedies provision of the Texas Tort Claims
Act.[2]  
We affirm.
Background
          On
September 11, 2009, Jessica Gunn sued the City of Houston and its employee,
Kurt Rogers.  Gunn alleged that Rogers had
negligently operated a motor vehicle, causing a collision with her vehicle.  Gunn asserted that, at the time of the
collision, Rogers, a police officer, was acting within the course and scope of
his employment.  Gunn alleged that the City
was liable for Rogers’s conduct under the theory of respondeat superior.
The City and
Rogers separately answered Gunn’s suit.  On
December 9, 2010, Gunn filed her first amended petition in which she sued only
the City.  Rogers was no longer named as
a defendant.  Shortly thereafter, the
City filed its plea to the jurisdiction asserting that Gunn’s tort claims were
barred by subsection 101.106(b) of the Tort Claims Act because Gunn had included
Rogers in her original petition.  Subsection
(b) provides that the “filing of a suit against any employee of a governmental
unit . . . 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 trial court denied the City’s plea to the
jurisdiction.  The City appeals the trial
court’s order.  
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.  See 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
de novo a trial court’s ruling on a jurisdictional plea.  Miranda,
133 S.W.3d at 226; see Kalyanaram v. Univ.
of Tex. Sys., 230 S.W.3d 921, 927 (Tex. App.—Dallas 2007, pet. denied).  
          The issue presented in this appeal
requires this Court to interpret section 101.106 of the Tort Claims Act.  “The meaning of a statute is a legal question,
which we review de novo to ascertain and give effect to the legislature’s
intent.”  Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009);
Galbraith Eng’g Consultants, Inc. v.
Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).  In construing statutes, our primary objective
is to give effect to the legislature’s intent as expressed in the language of
the statute.  Galbraith Eng’g Consultants, 290 S.W.3d at 867; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005) (“In
interpreting a statute, a court shall diligently attempt to ascertain
legislative intent and shall consider at all times the old law, the evil, and
the remedy.”).  “Where text is clear,
text is determinative of that intent.”  Entergy Gulf States, 282 S.W.3d at 437.  “This general rule applies unless enforcing
the plain language of the statute as written would produce absurd results.”  Id.  We presume the legislature intended a just and
reasonable result when it enacted the statute.  City of
Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).
Plea to the Jurisdiction Based on
Tort Claims Act Section 101.106(b) 
In its sole issue, the City argues
that the trial court erred in denying its plea to the jurisdiction because, by
simultaneously filing suit against Rogers, its employee, regarding the same
subject matter, Gunn triggered the application of subsection 101.106(b) of the Tort
Claims Act.  The City asserts that
subsection (b) grants it immunity and bars any suit by Gunn against the City arising
from the automobile collision between Gunn and Rogers.  
Sovereign and governmental immunity exist to protect the State and its
political subdivisions from lawsuits and liability for money damages because
such lawsuits hamper governmental functions by interfering with the appropriate
use of tax resources.  See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 (Tex. 2008). 
Even so, the State, and likewise its political subdivisions, may be sued
when the legislature has statutorily waived immunity.  See id.
 We interpret statutory waivers of
immunity narrowly, and the legislature’s intent to waive immunity must be clear
and unambiguous.  Id. (citing Tex. Gov’t Code
Ann. § 311.034).  
The Torts Claim Act establishes a limited waiver of immunity and
authorizes suits to be brought against governmental units in certain
narrowly-defined circumstances and with certain restrictions.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–009
(Vernon 2011); Tex. Dep’t of Criminal
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).  Relevant to this case, the Act waives governmental
immunity to the extent that liability arises from the “use of a motor-driven
vehicle or motor-driven equipment” or from “a condition or use of tangible
personal or real property.”  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021
(Vernon 2011).
The City does not dispute that section
101.021 generally waives its immunity for personal injury claims arising from
an auto accident, such as that asserted by Gunn.  Nonetheless, the City claims that, under the
procedural posture of this case, its immunity remains intact pursuant to
subsection 101.106(b) of the Tort Claims Act. 
Under that provision, the City contends that Gunn is forever barred from
suing the City for damages arising from the car accident.  
To understand subsection (b), it is
helpful to read the provision in the context of section 101.106 as a
whole.  That statute, 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 (Vernon 2011).
          The City contends that “where it
applies, section 101.106 creates and grants immunity, separate and apart from
(and independent of) common-law governmental immunity.”  The City’s contention in this regard finds
support in the Supreme
Court of Texas’s decision,
Newman v. Obersteller, in which the court stated that “section 101.106 is an
immunity statute.”  960 S.W.2d 621, 623
(Tex. 1997).  Recently, the supreme court
reiterated this position in Franka v.
Velasquez, 332 S.W.3d 367 (Tex. 2011). 
There, the court, citing Newman,
stated that section 101.106 is a statute which confers immunity.  Id.
at 371 n.9 (citing Newman, 960 S.W.2d
at 623).  
It is also helpful to understand
the legislative purpose behind the election-of remedies statute.  The Supreme Court of Texas stated that the legislature enacted
the current version of section 101.106 “to force a plaintiff to decide at the
outset whether [a governmental] 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.
            To
reiterate, subsection 101.106(b)—the provision under which the City seeks
dismissal—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).
The City asserts that subsection
(b) applies to bar Gunn’s suit against it because, at the time she filed her
suit, Gunn chose to sue the City and the governmental employee simultaneously.  The City contends that, under the language of
subsection (b), Gunn made an irrevocable election to sue the employee by suing the employee in her original petition.  In its brief, the City asserts, “The sole
trigger for subsection (b) immunity is the filing of a lawsuit against a
governmental employee regarding the same subject matter as the suit against the
governmental unit.”  The City’s position
implies that it is significant neither that Gunn also sued the City in the original
petition nor that Gunn later amended her petition to assert a claim against
only the City.  
The City bases its interpretation
of subsection (b) on the supreme court’s opinion in Mission Consol.
Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653 (Tex. 2008).  In
that case, three school-district
employees, who had been terminated by the school district, sued the district for
violating the Texas Commission on Human Rights Act (“TCHRA”) and sued both the
district and the district’s superintendent for the common-law tort of intentional
infliction of emotional distress.  Id. at 654–55.  The plaintiffs also sued
the superintendent for the torts of defamation, fraud, and negligent
misrepresentation.  Id. at 655. 
The employees’ common-law tort claims did not fall within
the Tort Claims Act’s limited waivers of immunity.  Id.
at 658; see Tex. Civ. Prac. & Rem. Code Ann. § 101.021.  The school district filed a plea to the jurisdiction
under section 101.106(b), asserting that the employees’ decision to sue both
the district and its superintendent barred recovery against the district.  Garcia,
253 S.W.3d at 655.  The trial court denied the district’s plea,
and the court of appeals affirmed.  Id. 
The supreme court granted review to “determine the scope of the Tort
Claims Act’s election-of-remedies provision and its effect” on the employees’
claims.  Id.
After considering the history of the provision, the supreme court
discussed the consequences of applying subsections (b) and (e) to the employees’
claims.  See id. at 658–59.  The Garcia court explained that the language “under this chapter” found
in subsection (e) does not limit that section’s reach to tort claims for which
the Tort Claim Act waives immunity.  Id. at 658.  The court reasoned that, because the Tort
Claims Act is the only avenue by which a claimant can recover against the
government for a common-law tort, all tort claims asserted 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.”  Id. at 659.  The court concluded that if the school district
had filed a motion under subsection (e)—which it had not—the superintendent would
have been entitled to dismissal of the employees’ tort claims against him.  Id.  The court stated that all of the employees’
tort claims against the district would also have been barred because “all tort
theories of recovery alleged against a governmental unit are presumed to be
“under the [Tort Claims Act].”  Id. 
The court stated that the employees’ TCHRA claims against the district were
not “filed under this chapter,” and, as result, the TCHRA claims would not have
been subject to dismissal under subsection (e). 
Id.  
The court then rejected the district’s argument that
subsection (b) operated to bar the employees’ “entire suit,” including the
TCHRA claims.  Id.  The court agreed with
the school district 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.”  Id.  The Garcia
court concluded that because the legislature had consented to suit under
the TCHRA, subsection (b) “would not operate to bar Garcia’s suit or recovery
against [the school district].”  Id. at 660.  The court held that the
TCHRA claims survived under the consent exception to subsection (b).  Id. 
Here, the City asserts, 
It is simply impossible to distinguish the
relevant facts and procedural circumstances of [Garcia] from those of this case. 
In both cases, the plaintiff filed suit simultaneously against the
governmental unit and its employee, asserting tort claims regarding the same
subject matter; and the governmental unit filed a plea to the jurisdiction
based upon section 101.106(b) immunity. 
Accordingly, the result here must be the same as the result in [Garcia]: that all of [Gunn’s] tort
claims against [the City] are barred by section 101.106(b) immunity.
 
In making
this assertion, however, the City does not acknowledge a critical procedural distinction
between this case and Garcia.  Here, Gunn amended her petition omitting
Rogers as a defendant.  By amending her
petition to omit him, Gunn effectively non-suited her claims against
Rogers.  See FKM P’ship v. Bd. of Regents of the Univ. of Houston Sys., 255
S.W.3d 619, 633 (Tex. 2008).  In
contrast, the plaintiffs in Garcia never
abandoned their claims against the district’s employee and did not elect the
district as the defendant against whom they would proceed.[4]
 
          The language of Garcia indicates that the supreme court did not interpret section
101.106 to forever bar a plaintiff who simultaneously files suit against a
governmental unit and its employee from proceeding against the governmental
unit.  In this regard, the Garcia court stated, 
Under the Tort Claims Act’s
election scheme, recovery against an individual employee is barred and may be
sought against the governmental unit only in three instances: (1) when suit is
filed against the governmental unit only, id.
§ 101.106(a); (2) when suit is filed against both the governmental unit and its
employee, id. § 101.106(e); or
(3) when suit is filed against an employee whose conduct was within the scope
of his or her employment and the suit could have been brought against the
governmental unit, id. § 101.106(f).
 
Garcia, 253
S.W.3d. at 657.  
In this statement, the Garcia court
recognized that a plaintiff who initially files suit against both the
governmental unit and its employee for common law tort claims may still recover
against the governmental unit.  See id. 
When a plaintiff simultaneously files common law tort claims against
both a governmental unit and its employee, the employee shall be dismissed from
the suit pursuant to a subsection (e) motion filed by the governmental
unit.  See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106(e).  
This Court has stated, “The plain language of [sections 101.106(a) and
(b)] suggests that the legislature intended for the plaintiff’s election to
occur when the plaintiff first files suit.”  Alexander
v. Walker, No.
01–10–00147–CV, 2011 WL 2500482, at *4 (Tex. App.—Houston [1st Dist.] June 23,
2011, no pet.).  Of course, this election
may be involuntarily altered by subsections (e) and (f).  Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(e), (f). 

Here, Gunn initially
elected to file suit against both the City and Rogers.  Had the City filed a subsection (e)
motion to dismiss, Gunn’s claims against Rogers would have been properly
dismissed.  See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106(e).  The City did not file a subsection (e) motion.
 Id.
 Instead, Gunn voluntarily dismissed her
claims against Rogers, thereby foregoing the City’s need to file a subsection
(e) motion and avoiding the cost and delay associated with the filing of such motion.
 Although the procedure of subsection (e)
was not followed here, the outcome is the same: the only claims remaining are the
common law tort claims against the City arising from the auto collision.  Hintz v.
Lally, 305 S.W.3d 761, 769 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) (stating that “one-way door” that operates to remove governmental unit
employee from suit, properly directed at the governmental unit, itself
“comports with the legislature’s goal to address efforts to circumvent the Tort
Claims Act’s limits by litigants who sued governmental employees individually
instead of their governmental employers”). 
By electing to sue only the City in her amended petition, and by
dismissing her claims against Rogers, Gunn is immediately and forever barred by
subsection (a) from bringing common law tort claims against Rogers arising from
the car wreck.  See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106(a); see
also Kamel v. Univ. of
Tex. Health Ctr., 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied); Hintz, 305
S.W.3d at 771; cf. Barnum v. Ngakoue, No.
03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin April 29, 2011, pet.
filed) (stating that subsections (a) and (b), similar to subsections (c) and
(d), are “mirror provision[s]” showing an intent to prevent a claimant from
suing or recovering against either a governmental employer or its employee and
then later suing or recovering against the other).  In other words, Gunn’s voluntary decision to choose
the City as her defendant, after suing both the City and Rogers, has the same
irrevocable consequence as a subsection (e) motion.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).  Gunn’s
amended petition indicates her election to recover only against the City and to
forego recovery against Rogers.  In
short, Gunn made her election for purposes of the election-of remedies
provision, and she elected the City as her defendant.
Recently, in City of Houston v. Esparza, this Court determined whether subsection
(b) applied to bar a plaintiff’s claims against the City arising from a car
accident when the plaintiff had sued both the City and its employee, and the
City had then filed a motion to dismiss the employee under subsection (e).  No. 01-11-00046-CV, 2011 WL 4925990 (Tex.
App.—Houston [1st Dist.] October 7, 2011, no pet. h.) (op. on reh’g).  In Esparza, the
City offered an argument similar to that offered in this case.  We summarized the City’s contentions as
follows:  
The City contends that Esparza has failed to comply with
the election-of-remedies provision
because she sued both the City and its employee.  The City asserts that the provision requires a
claimant to choose between suing either the City or its employee, and a claimant
who instead sues both loses the opportunity to sue either—the employee is
dismissed under subsection (e) and the government is immune under subsection
(b).
 
Id. at *3 (citations omitted).
 
We rejected the City’s contention
that subsection (b) barred the plaintiff’s suit against it and affirmed the
trial court’s order denying the City’s plea to the jurisdiction.  Id.
at *10.  In reaching this conclusion, we
explained, “[The plaintiff] elected her remedy—not by choice, but by operation of the statute.  When a claimant fails to elect between
defendants and instead sues both, subsection (e) forces an election upon the
claimant: the governmental unit is the proper defendant and the employee must
be dismissed.”  Id. at *4.  
          In
holding that subsection (b) did not bar Esparza’s recovery against the City, we
discussed the consent exception found in subsection (b).[5]  Id. at *6. 
When applicable, subsection (b) bars suit against a governmental unit
“unless the governmental unit consents.”  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b).  We
rejected the approach taken by a number of our sister courts that read the
exception to create a blanket waiver of the same immunity established by
subsection (b) whenever the asserted claim is one for which the Tort Claims Act
waives immunity.  Esparza, 2011 WL 4925990, at *7.  We concluded
that the consent exception applies only “if the claimant has satisfied the
Act’s other jurisdictional requirements, including those set forth in the
election-of-remedies provision.”  Id. at *10.  We stated, “A claimant satisfies the [election-of-remedies]
provision by electing—voluntarily or involuntarily—whether she will prosecute
her claims against a governmental unit or its employee, forever forgoing
prosecution against the other.”  Id.  
We further stated that “[u]nder section 101.106, Esparza’s filing
of suit against both [the governmental employee] and the City invoked
subsection (e).  By operation of subsection (e), Esparza’s filing of suit and
the City’s motion to dismiss [the employee] resulted in a forced election:
whether she intended to or not, Esparza elected to pursue her claims against
the City rather than [the employee].”  Id. at *10 (internal citations omitted).  We then held, “The trial court therefore
properly dismissed her claims against Espinoza, and she is forever barred from
bringing common law tort claims against him arising out the accident at issue here.
 But, so long as she has otherwise
complied with the jurisdictional requisites of the Tort Claims Act, subsection
(b) does not bar Esparza from pursuing her claims against the City, her elected
defendant.”  Id. (internal citations and footnote omitted).
Here, Gunn voluntarily elected to pursue her claims against
the City and to forever forego her common law tort claims against Rogers
arising from the car accident.  By so
doing, Gunn satisfied the requisites of the election-of-remedies provision.  See
id.  Thus, we hold that, if she has
otherwise complied with the jurisdictional requisites of the Tort Claims Act, Gunn
is not barred by subsection (b) from pursuing her claims against the City, her
elected defendant.[6]  See id.
We overrule the City’s sole issue. 
 
 
 
 
 
Conclusion
          We affirm
the order of the trial court denying the City’s plea to the jurisdiction.
 
                                                                    Laura Carter Higley
                                                                   Justice 
 
Panel
consists of Justices Keyes, Higley, and Massengale.
Justice
Massengale, concurring.
 




[1]           See
Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (Vernon 2008).
 


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


[3]           Id.


[4]           Another noteworthy distinction between
the instant case and Garcia is that
the common-law tort claims asserted in Garcia
did not fall within the limited waiver of immunity found in the Tort Claims
Act.  


[5]           We also recognized, 
If, as the City argues,
subsections (a) and (b) apply independently to any suit brought against a
governmental unit and its employee simultaneously and mandate dismissal of both
the governmental unit and its employee in such cases, then subsection (e), which
dictates the dismissal of the employee in such cases, would be superfluous, and
its language, which does not mention dismissal of the governmental unit, would
be incongruent.
 
City of Houston v.
Esparza, No. 01-11-00046-CV at *6 (Tex. App.—Houston [1st Dist.] October 7,
2011, no pet. h.) (op. on reh’g). 
 


[6]
          As in Esparza, we note that the City here has not challenged Gunn’s
compliance with the Tort Claims Act jurisdictional requirements, other than the election-of-remedies
provision.  Gunn’s claims against
the City arise from an auto accident.  The Act waives governmental immunity to the
extent that liability arises from the “use of a motor-driven vehicle or
motor-driven equipment.”  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021
(Vernon 2011).  However, exceptions apply
to this waiver of immunity.  For example,
Tort Claims Act section 101.055(2) excludes the operation of emergency vehicles
in emergency situations from the general waiver of immunity for negligent
operation of governmental vehicles.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.055(2)
(Vernon 2011).  In addition, the Tort
Claims Act has certain procedural
requirements with which a claimant must comply to obtain waiver of immunity to
sue a governmental unit.  See, e.g., Tex. Civ. Prac. & Rem.
Code Ann. § 101.101 (Vernon 2011) (setting out pre-suit notice requirement).
 


