

Opinion issued June 23, 2011. 
 
 
 
 
 

 
 
 
 
 
 
 
In The
Court of Appeals
For The
First District of Texas
 


















 

NO. 01-10-00147-CV
 





















 

DEPUTY COREY ALEXANDER AND SERGEANT JIMMIE COOK,
Appellants
 
V.
 
APRIL WALKER, Appellee
 
 

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2008-72560
 
 

OPINION ON MOTION FOR REHEARING
          April
Walker sued Harris County Sheriff’s Department Deputy Corey Alexander and
Sergeant Jimmie Cook for assault, conspiracy, slander, false arrest, false
imprisonment, and malicious prosecution. 
Several weeks later, Walker sued Harris County in federal court for the
same claims that she asserted against the officers, based on vicarious
liability, and for violation of sections 1983 and 1988.  See
42 U.S.C. §§ 1983 & 1988 (2006). 
The officers moved for summary judgment in the state court proceeding,
contending that the election of remedies provision of the Texas Tort Claims Act
bars the suit against them.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(a), (e)–(f) (West
2005).  The trial court denied the
motion.  On appeal, the officers contend
that the trial court erred in denying their summary judgment motion.  On January 13, 2011, we issued an opinion
affirming the judgment of the trial court. 
The officers filed a motion for rehearing.  We grant the motion, withdraw our opinion
issued January 13, 2011, and issue this opinion in its stead.  Our disposition is unchanged. 
Background
Walker filed this suit against the
officers in state district court on December 9, 2008.  She alleged intentional torts arising out of
an incident in January 2008 involving Deputy Alexander and an incident in July
2008 involving Sergeant Cook.  Walker then
sued Harris County, former Harris County Sheriff Tommy Thomas, and an unnamed
defendant in federal district court on December 29, 2008.  In the federal suit, she alleged the same
intentional torts that she had asserted against the officers in this suit, based
on vicarious liability principles, as well as additional claims for trespass,
failure to properly hire, train, and supervise the
officers, and violation of sections 1983 and 1988.  See
42 U.S.C. §§ 1983 & 1988.  The
officers removed this case to federal court. 
The federal district court later remanded it.
The officers then moved in state
court for a traditional summary judgment, contending that section 101.106 of
the Civil Practice and Remedies Code bars the suit against them.[1]  See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.106(a), (e)–(f) (West 2005). 
Specifically, according to the officers, subsection (e) mandated their dismissal
because Walker sued both Harris County and the officers, and Harris County had
moved the federal court to dismiss Walker’s state claims.  See
Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(e).  The trial court
denied the officers’ summary judgment motion, and the officers filed this
interlocutory appeal.  See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West 2008) (“A
person may appeal from an interlocutory order . . . that
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.”).
Discussion 
          The
officers contend on appeal that section 101.106(a) bars any suit against them
in state court for the tort claims, because, under section 101.106(a), Walker’s
federal suit against Harris County constitutes an irrevocable election in favor
of proceeding against the governmental employer and bars suit against the
individual officers.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(a) (2005).  According to the officers, the trial court
therefore erred in denying their motion for summary judgment.  
Standard of Review
          We
review de novo the trial court’s ruling on a summary judgment motion.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009).  The
party moving for traditional summary judgment bears the burden of showing that
no genuine issue of material fact exists and the party is entitled to judgment
as a matter of law.  Tex. R. Civ. P. 166a(c).  When moving for summary judgment based on an
affirmative defense, such as immunity, the movant bears the burden to
conclusively establish each element of the defense.  See
Morgan v. City of Alvin, 175 S.W.3d 408, 413 (Tex. App.—Houston [1st Dist.]
2004, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)).  If the movant conclusively establishes the
affirmative defense, the burden shifts to the non-movant to raise a disputed
fact issue.  Id. (citing Brand v. Savage,
920 S.W.2d 672, 673 (Tex. App.—Houston [1st Dist.] 1995, no writ)).  To determine if the non-movant raises a fact
issue, we review the evidence in the light most favorable to the non-movant,
crediting favorable evidence if reasonable jurors could do so and disregarding
contrary evidence unless reasonable jurors could not.  See
Fielding, 289 S.W.3d at 848 (citing City
of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
          In
construing a statute, like the Texas Tort Claims Act, our primary objective is
to determine and give effect to the Legislature’s intent.  State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Tex. Gov’t Code Ann.
§ 312.005 (West 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.”).  We first look to the plain language of the
statute, for “it is a fair assumption that the Legislature tries to say what it
means, and therefore the words it chooses should be the surest guide to
legislative intent.”  Fitzgerald v. Adv. Spine Fixation Sys., 996 S.W.2d
864, 865 (Tex. 1999).  We also consider
the object the Legislature sought to attain, the circumstances under which the
Legislature enacted the statute, the legislative history, former statutory
provisions, and the consequences of a particular construction.  Tex. Gov’t Code Ann.
§ 311.023(1)–(5) (West 2005).  We read the statute in its entirety and
interpret it to give effect to every part. 
Gonzalez, 82 S.W.3d at 327
(citing Jones v. Fowler, 969 S.W.2d
429, 432 (Tex. 1998)); see also Tex. Gov’t Code Ann. § 311.021(2)–(3) (West 2005) (“In enacting a
statute, it is presumed that the entire statute is intended to be effective;
[and] a just and reasonable result is intended.”).
Application of Section 101.106
          After
the Texas Legislature enacted the Texas Tort Claims Act, which established a
limited waiver of sovereign immunity and capped damages for certain suits
against governmental entities, plaintiffs began suing governmental employees
individually, instead of their governmental unit employers, to circumvent the Texas
Tort Claims Act’s restrictions.  See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655–56 (Tex. 2008); Hintz v. Lally,
305 S.W.3d 761, 766 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).  To curb these practices, the legislature
enacted section 101.106, the election of remedies provision, to protect
governmental employees from suit in cases in which a claim against the
governmental unit involving the same subject matter either settled or proceeded
to judgment.  See 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); Garcia, 253 S.W.3d at 656.  
          In
2003, the legislature amended section 101.106 to protect governmental employees
from litigants pursuing alternative theories of liability against both the
employee and the governmental unit.  Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106; Garcia, 253 S.W.3d at
656.  The amendments “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.”  Garcia,
253 S.W.3d at 657.  By requiring the plaintiff to make an
irrevocable election between proceeding against the employee or the
governmental unit “at the time suit is filed,” section 101.106 “narrows the
issues for trial and reduces delay and duplicative litigation costs.”  Id.
          Section
101.106 provides that:
(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.
 
. . . .
 
(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.  
          In
Garcia, the Texas Supreme Court noted
that the election of remedies provision bars recovery against the governmental
employee in three particular instances:  “(1)
when suit is filed against the governmental unit only, Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a); (2) when
suit is filed against 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. 
          Under
subsection (a), filing suit against the governmental unit under the act
constitutes an irrevocable election and “immediately and forever bars” any suit
against an individual employee regarding the same subject matter.  Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(a).  Subsection (b) contains
a parallel provision protecting the governmental unit when the plaintiff sues
the employee:  filing suit against the
employee “immediately and forever bars” suit against the governmental unit
regarding the same subject matter, unless the unit consents.  Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(b).  Subsections (a) and (b) both provide that
suing the governmental unit and the employee, respectively, constitutes an
“irrevocable election” that “immediately and forever bars” suit or recovery
against the other regarding the same subject matter, unless, in the case of
subsection (b), the governmental unit consents. 
Id. § 101.106(a)–(b).

          The
plain language of both of these sections suggests that the legislature intended
for the plaintiff’s election to occur when the plaintiff first files suit.  See Garcia,
253 S.W.3d at 657 (“The revision’s apparent purpose was to force a plaintiff to
decide at the outset whether an employee acted
independently . . . .”);
Villasan v. O’Rourke, 166 S.W.3d 752, 761 (Tex. App.—Beaumont 2005, pet.
denied) (“Given the fact that an election is forced by section 101.106 at the
time a [Texas Tort Claims Act] claimant files suit, and the fact that the
initial decision is irrevocable, the initial decision may determine the
claimant’s ultimate success or failure.”); see
also Wilkins v. McManemy, No. 14-06-00876-CV, 2009 WL 838139, at *2 (Tex.
App.—Houston [14th Dist.] Mar. 31, 2009, pet. denied) (mem. op.) (“Once the plaintiff has acted on that
decision by filing suit against either the employee or the governmental unit,
the statute plainly provides that the plaintiff may not later sue the
other.  The plaintiff has made ‘an
irrevocable election’ that ‘immediately and forever bars any suit or recovery
by the plaintiff against’ whichever of the two—the employee or the governmental
unit—that the plaintiff elects not to sue.”).  
          The
legislature specifically contemplated two instances in which the plaintiff’s
initial election regarding which party to sue should not control.  The first, subsection (e), provides that, if
the plaintiff sues both the government employer and the employee under the Texas
Tort Claims Act, the trial court shall immediately dismiss the employee upon
motion by the employer.  Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(e); Hintz, 305 S.W.3d
at 769 (“A plaintiff who sues both the employee and the employer also can be
compelled to dismiss the employee and sue only the employer instead.”).  The second, subsection (f), is a statutory
exception to subsection (b)’s irrevocable election, which allows a plaintiff to
change defendants if she meets certain criteria.  Under this subsection, “the plaintiff can be
compelled to switch targets from the governmental employee to the governmental
employer if ‘suit is filed against an employee . . . based
on conduct within the general scope of that employee’s employment and if it
could have been brought under [the Texas Tort Claims Act] against the
governmental unit.’”  Hintz, 305 S.W.3d at 769 (quoting Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(f)).  Section 101.106
provides no other mechanism to allow a defendant to force a plaintiff to switch
the target of her suit from the governmental employee to the employer when she
sues the employee first.  
          In
this case, when Walker first sued the officers in state court, she elected to
sue only the officers, employees of Harris County.  As Walker sued the individuals first,
subsection (b) is the provision applicable to this suit, and Walker’s decision
was an irrevocable election that immediately and forever barred any suit or
recovery by Walker against Harris County for the same subject matter unless
Harris County consents or the exception under subsection (f) becomes applicable.
 See
Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(b), (f); Garcia, 253
S.W.3d at 657; Villasan, 166 S.W.3d
at 761; see also Wilkins, 2009 WL
838139 at *3.  The officers do not
contend on appeal that subsection (f) required Walker to switch the target of
her suit from the officers to Harris County. 

          Instead,
the officers contend that they must be dismissed under subsection (a) because
Walker later sued the county in federal court. 
The officers rely on the Fourteenth Court of Appeals’ decision in Hintz, for the proposition that the
order in which the plaintiff sues either the governmental employees or the
governmental unit does not control the election.  See  305 S.W.3d at
768–71.  In Hintz, Hintz first sued Lally, an employee of the University of Texas Health Science Center (“UT”).  Id. at 763.  Lally
moved to dismiss the suit pursuant to section 101.106(f), so Hintz voluntarily
dismissed Lally and named UT as the sole defendant.  Id. at 764.  The trial
court then granted UT’s plea to the jurisdiction and denied Hintz’s motion to
withdraw her voluntary dismissal of Lally. 
Id. at 765.  Hintz filed an amended petition, which again named
Lally as the sole defendant.  Id.  Lally
then moved to dismiss under sections 101.106(a) and (f), and the trial court
granted the motion.  Id.  
Our sister court upheld the trial
court’s dismissal of Lally based on section 101.106(a), reasoning that “[t]he
dispositive election occurs when the governmental employer is sued—regardless
of whether the governmental employer is sued alone or in tandem with the
employee, and regardless of whether the governmental employer is sued in the
‘original’ petition or an ‘amended’ petition.” 
Id. at 771.  After Hintz substituted UT for Lally, Lally was
entitled to immunity under subsection (a) via the operation of 101.106(f).  See id.
at 771. [2]  
In this case, in contrast, Walker never
substituted Harris County as a defendant pursuant to subsection (f), but instead
filed a separate suit in federal court against the county after she sued the
individual defendants in state court. 
The officers do not argue on appeal that either of the two statutory
exceptions, subsection (e) or (f), applies in this case.  Because Walker sued the individual officers
before she sued Harris County, subsection (b) applies to bar suit against
Harris County for suits regarding the same subject matter, unless Harris County
consents.  The officers remain defendants,
as they do not argue on appeal that subsection (f) applies. Subsection (a) is
inapplicable to this case because Walker made the irrevocable election to sue
the officers before she sued Harris County. 
Applying subsection (a) here would render subsection (b)
meaningless.  See Gonzalez, 82 S.W.3d at 327 (“[W]e
‘read the statute as a whole and interpret it to give effect to every part.’”
(quoting Jones,
969 S.W.2d at 432)).  We hold that the trial
court correctly denied the officers’ summary judgment motion based on section 101.106(a).
On rehearing, the officers urge that
we reconsider our decision in light of the Texas Supreme Court’s decision in Franka v. Velasquez. See 332 S.W.3d 367, 369 (Tex. 2011).  In Franka,
the court construed the phrase “could have been brought” as used in section
101.106(f).  See id.  The court held that
“any tort claim against the government is brought ‘under’ the Act for the
purposes of section 101.106, even if the Act does not waive immunity.”  Id. at 375.  On
appeal, the officers do not contend that 101.106(f) bars Walker’s suit.  We do not affirm either under that provision or
on any characterization of the underlying claims, but on the straightforward
effect of who sued whom first.  Accordingly,
we hold that Franka is inapplicable
to the present case.  
 
 
Conclusion
We hold that under section 101.106(b)
of the Texas Tort Claims Act Walker irrevocably elected to sue the police officers
individually, barring all subsequent suits against Harris County, their
governmental employer.    That election foreclosed any subsequent
election under section 101.106(a) when Walker sued the county in federal court,
absent the applicability of subsection (f). 
The trial court thus properly denied the officers’ summary judgment
motion.  We affirm the order of the trial
court.
 
 
 
                                                          Jane Bland
                                                          Justice
 
Panel consists of Justices Keyes,
Higley, and Bland.




[1]           The officers also moved for no-evidence
summary judgment on the basis of official immunity.  The trial court ruled that, because official
immunity is an affirmative defense, the officers could not move for no-evidence
summary judgment on that basis and denied the motion.  See
Tex. R. Civ. P. 166a(i) (“After
adequate time for discovery, a party without presenting summary judgment
evidence may move for summary judgment on the ground that there is no evidence
of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial.”).  The officers do not challenge this ruling on
appeal.


[2]
          The ruling in Hintz is
similar to our recent ruling in Kamel v.
Univ. of Tex. Health Ctr.  See 333 S.W.3d 676, 688 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). In Kamel, Kamel, the plaintiff, sued two physicians and a state
hospital for medical malpractice.  Id. at 679.  One of the
physicians moved for dismissal from the suit based on 101.106(f), arguing that
his conduct was within the general scope of his employment with the University of Texas Health Science Center at Houston (“UT”) and that
this case could have been brought against UT. 
Id.  Kamel then moved to dismiss this physician
and amend his pleading to replace the physician with UT pursuant to
101.106(f).  Id.
at 680.   The trial court
granted Kamel’s motion to dismiss, and Kamel filed his second amended petition
dismissing the physician and adding UT.  Id. 
The second physician in the case then filed a motion to dismiss pursuant
to 101.106(a) and (f).  Id. The trial court granted the motion,
and this court affirmed the ruling under 101.106(a) because Kamel’s
substitution of UT for the first physician as defendant constituted an
irrevocable election that barred any suit or recovery against an individual
employee of the governmental unit.  Id. at 688.


