                                             OPINION
                                       No. 04-11-00271-CV

                         TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                      Appellant

                                                 v.

                                        Rachel DEAKYNE,
                                             Appellee

                     From the 57th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-18007
                             Honorable Richard Price, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: March 7, 2012

AFFIRMED

           Rachel Deakyne was injured in an automobile accident involving a patrol car driven by

Texas Department of Public Safety (DPS) Trooper Kavin Edwards. Deakyne sued Edwards and

DPS for negligence. The trial court granted DPS’s motion to dismiss Edwards but denied DPS’s

motion to dismiss Deakyne’s suit against DPS. In its sole issue on appeal, DPS argues the

election of remedies statute bars Deakyne’s suit. We affirm the trial court’s interlocutory order.
                                                                                  04-11-00271-CV


                                         BACKGROUND

       Rachel Deakyne was injured when her vehicle became involved in an automobile

accident with a DPS patrol car driven by Trooper Edwards. In her original petition, Deakyne

sued both Edwards and DPS. She alleged that “at all relevant times” Edwards was acting

“within the scope and course of his employment [with DPS] and was in furtherance of the duties

of his office.” Deakyne asserted that Edwards was personally negligent and that DPS was liable

under respondeat superior. She sought damages from DPS and Edwards “jointly and severally.”

Deakyne served discovery requests on DPS and Edwards including an interrogatory asking if

Edwards was in the course and scope of his employment when the collision occurred.

A. DPS’s Motion to Dismiss Edwards

       About ten days after it was sued, DPS moved to dismiss Edwards under section

101.106(e) of the election of remedies statute.     See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.106(e) (West 2011). In an affidavit in the record, Deakyne’s attorney stated that he

offered to cosign a proposed order dismissing Edwards if DPS would stipulate that Edwards was

in the course and scope of his employment when the accident occurred; DPS refused.

       At the initial hearing on DPS’s motion to dismiss Edwards, the court asked DPS the same

question, and DPS again refused to stipulate that Edwards was acting in the course and scope of

employment at the time of the accident. The trial court granted a continuance until the discovery

responses were filed. In Edwards’s responses to plaintiff’s interrogatories, he asserted he was

acting in the course and scope of his employment when the accident occurred. Deakyne’s

attorney signed the draft order to dismiss Edwards and the court granted DPS’s motion.




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B. DPS’s Motion to Dismiss Deakyne’s Suit

       After the trial court dismissed Edwards from the suit, DPS moved to dismiss Deakyne’s

entire suit against DPS under section 101.106(b). DPS argued that Deakyne’s suit against DPS

was barred because her original petition named both Edwards and DPS as defendants. Deakyne

responded that subsection (b) does not bar her suit against DPS because DPS has consented to

suit by operation of the Texas Tort Claims Act’s waiver of DPS’s immunity for a car accident.

The trial court denied DPS’s motion to dismiss Deakyne’s suit against it. DPS appeals the trial

court’s interlocutory order.

                                   STANDARDS OF REVIEW

       We review a defendant’s challenge to the trial court’s jurisdiction to hear the suit de

novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We

also review matters of statutory construction de novo. City of Rockwall v. Hughes, 246 S.W.3d

621, 625 (Tex. 2008).

                                          ANALYSIS

       The parties agree that the Texas Tort Claims Act (TTCA) waives DPS’s immunity from

suit for accidents involving state automobiles where the State has liability under the Act. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011); Miranda, 133 S.W.3d at 225. See

generally Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West

2011). But the parties disagree on how the TTCA applies to Deakyne’s suit against DPS. To

determine whether the trial court erred when it denied DPS’s motion to dismiss Deakyne’s suit

against DPS, we must construe the applicable sections of the TTCA.




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A. Statutory Construction Principles

       We review questions of statutory construction with the objective to “give effect to the

Legislature’s intent.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).

“[W]e determine legislative intent from the entire act and not just from isolated portions.” State

ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

“[W]e must read the statute as a whole and interpret it to give effect to every part.” Jones v.

Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (per curiam). “[W]e ‘give effect to all the words of a

statute and [do] not treat any statutory language as surplusage[,] if possible.’” Spradlin v. Jim

Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (second and third alterations in original)

(quoting Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)). In determining the

legislature’s intent for creating the statute, “[w]e presume the Legislature intended a just and

reasonable result.” Hughes, 246 S.W.3d at 626 (citing TEX. GOV’T CODE ANN. § 311.021(3)

(West 2005)).

B. Election of Remedies Statute

       The election of remedies portion of the TTCA, codified in section 101.106 of the Texas

Civil Practice and Remedies Code, contains grants of immunity and procedural requirements

(with jurisdictional ramifications) for suits seeking to recover from a governmental unit, its

employee, or both.

       (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.



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       (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 (West 2011); see 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.).

C. DPS’s Argument

       DPS insists that if a plaintiff files suit against both a governmental unit and its employee,

then on the governmental unit’s motion, the employee must be dismissed under subsection (e)

and the plaintiff’s remaining suit against the governmental unit must be dismissed under

subsection (b). Relying first on section 101.106(e), DPS argues that because Deakyne initially

sued both Edwards and DPS, Edwards had to be dismissed from Deakyne’s suit:

       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). Relying next on section 101.106(b), DPS

asserts that after Edwards was dismissed, subsection (b) also applies and necessarily bars

Deakyne’s suit against DPS:

       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


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                                                                                      04-11-00271-CV


       recovery by the plaintiff against the governmental unit regarding the same subject
       matter unless the governmental unit consents.

See id. § 101.106(b). Because Deakyne initially sued both Edwards and DPS, DPS insists that

subsection (e) applies first, and then subsection (b) also applies and “forever bars” Deakyne’s

suit against DPS. See id. § 101.106(b), (e).

       DPS also argues that Mission supports its view. See Mission Consol. Indep. Sch. Dist. v.

Garcia, 253 S.W.3d 653, 655S60 (Tex. 2008) (addressing, inter alia, the “unless the

governmental unit consents” phrase in section 101.106(b) and the “under this chapter” phrase in

section 101.106(e)). In Mission, the supreme court noted that “[b]ecause the decision regarding

whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit

and carefully consider whether to seek relief from the governmental unit or from the employee

individually.” Id. at 657. The statute “requir[es] a plaintiff to make an irrevocable election at

the time suit is filed between suing the governmental unit [and the employee].” Id. (emphasis

added). According to Mission, the legislature revised the statute “to force a plaintiff to decide at

the outset whether [to sue the employee individually or the governmental unit] . . . thereby

reducing the resources that the government and its employees must use in defending redundant

litigation and alternative theories of recovery.” Id. (emphasis added).

D. Deakyne’s Argument

       Deakyne disputes DPS’s interpretation of section 101.106 and its reading of Mission.

She argues that section 101.106(e) contemplates her situation: it allows her to sue Edwards and

DPS, forces DPS to acknowledge it is the proper defendant, and allows DPS to move to dismiss

Edwards. Thereafter, she asserts, Edwards is immune from suit under subsection (a). She argues

that this construction fulfills the legislature’s intent for subsection (e): the proper defendant has




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been chosen, the employee has been protected, and the suit against the governmental unit can be

decided on its merits.

E. Examining DPS’s View

       For the reasons discussed below, we do not construe section 101.106 as a bar to

Deakyne’s suit against DPS. We disagree with DPS’s view that applies subsections (e) and (b)

as isolated fragments. DPS’s construction is fraught with problems. Its construction invites

mischief, conflicts with case law, and fails to consider how subsections (a) and (b) should apply

in light of the overall statutory framework and subsection (e)’s acknowledgement that a suit may

name both an employee and the governmental unit. See City of Rockwall v. Hughes, 246 S.W.3d

621, 640 (Tex. 2008) (5-4 decision) (Willet, J., dissenting) (“[S]tatutes operate as a whole and

must be read as a whole, not as a hodgepodge of isolated fragments.”); Spradlin v. Jim Walter

Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (avoiding constructions that make statutory

language into surplusage); see also City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL

4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g) (rejecting

the City’s view that suing both the governmental unit and its employee requires dismissing both

because that view would make subsection (e) superfluous and incongruent).

       1. DPS’s view invites mischief

       Adopting DPS’s view would invite mischief. A governmental unit might refuse to admit

its employee was acting in the course and scope of employment. If the governmental unit

refused to disclose the employee’s role before the suit was filed, the plaintiff could be forced to

engage in pre-suit discovery in an attempt to determine the proper defendant. If the discovery

response was delayed or denied, the plaintiff could be forced to choose a party to sue without

sufficient information.   See Franka v. Velasquez, 332 S.W.3d 367, 380–81 (Tex. 2011)



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(disfavoring the appellate court’s construction of the statute that would force plaintiffs to choose

whom to sue before the question of immunity was determined). Such incentives to withhold

information could operate to increase delay, increase the cost of litigation, and deny some

plaintiffs relief simply because they guessed wrong. See Mission, 253 S.W.3d at 657 (espousing

a prompt determination of the elected defendant and eschewing delay and unnecessary litigation

costs).

          In this case, after Deakyne filed suit, DPS twice refused to stipulate that Edwards was in

the course and scope of his employment at the time of the accident. Ultimately, in his responses

to interrogatories, Edwards asserted that at the time of the accident he was acting within the

course and scope of his employment. But Edwards’s statement is not necessarily dispositive;

DPS can deny Edwards’s assertion and contest respondeat superior liability. See e.g., Bell v.

VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.—Fort Worth 2006, no pet.). 1

          2. DPS’s view conflicts with the statute’s language

          Under DPS’s view, after the employee is dismissed on the governmental unit’s

subsection (e) motion, the governmental unit must be dismissed by operation of subsection (b).

In rejecting DPS’s view, we read section 101.106 as a whole and adopt a construction that

considers the separate and collective purposes of each of its subsections. See Hughes, 246

S.W.3d at 640 (5-4 decision) (Willett, J., dissenting).

          Section 101.106 is entitled “Election of Remedies.” In essence, subsections (a) through

(d) immunize from suit or recovery the non-elected defendant. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(a)–(d); cf. Esparza, 2011 WL 4925990, at *5 (explaining that when a

plaintiff sues both the governmental unit and the employee, after the governmental unit moves to


1
 At oral argument, DPS expressly disclaimed admitting that Edwards was acting in the course and scope of his
employment at the time of the accident.

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dismiss its employee, subsection (a) “endow[s] the employee with immunity”). In our view,

these subsections presume that the mutually exclusive election between the employee and the

governmental unit has already been made, and they define the consequences of that election. If a

plaintiff elects 2 a governmental unit as the defendant, subsection (a) grants the employee—the

non-elected defendant—immunity from the plaintiff’s suit or recovery. 3 Esparza, 2011 WL

4925990, at *5. If a plaintiff elects the employee as the defendant, subsection (b) immunizes the

governmental unit—the non-elected defendant—against the plaintiff’s suit or recovery. 4 If a

plaintiff elects to recover from a governmental unit and accepts a settlement with it, subsection

(c) immunizes the employee—the non-elected defendant—from the plaintiff’s further suit or

recovery. 5 If a plaintiff elects an employee as the defendant and obtains a judgment against the

employee, subsection (d) immunizes the governmental unit—the non-elected defendant—against

the plaintiff’s suit or recovery. 6 After the plaintiff’s election of defendant is made, the applicable

subsection (i.e., (a), (b), (c), or (d)) takes effect to immunize the non-elected defendant from suit

or recovery; these four subsections do not contain procedural components that force an

additional election.

        On the other hand, subsections (e) and (f) contain prospective procedural steps that force

the plaintiff to make a mutually exclusive election between defendants—the plaintiff must elect

2
  The plaintiff’s election may be made by pleading or operation of statute as discussed herein and in Esparza. See
City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *5 (Tex. App.—Houston [1st Dist.] Oct. 7,
2011, pet. filed) (op. on reh’g).
3
  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(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.”).
4
  See id. § 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.”).
5
  See id. § 101.106(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.”).
6
  See id. § 101.106(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.”).

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either the governmental unit or the employee individually.         Neither (e) nor (f) expressly

immunizes the governmental unit or the employee. Rather, they ensure the mutually exclusive

election is made and rely on subsections (a) through (d) to immunize the non-elected defendant.

       In our view, subsection (e) expressly contemplates a situation where the plaintiff initially

sues both the employee and the governmental unit:

       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). If the plaintiff initially sues both the

governmental unit and the employee (whether individually or in the scope of employment) and

the governmental unit moves to dismiss its employee, subsection (e) forces an election: the

employee becomes the non-elected defendant and is dismissed; the remaining defendant—the

governmental unit—is the elected defendant. See Esparza, 2011 WL 4925990, at *6; see also

Mission, 253 S.W.3d at 657.

       Subsection (f) controls when the plaintiff initially sues only the employee and only in the

employee’s official capacity:

       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.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). In such an instance, subsection (f) also

forces an election. On the employee’s motion to dismiss, the plaintiff must either timely join the

governmental unit—making it the elected defendant—or forego any suit. See Esparza, 2011 WL

4925990, at *5.


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       Reading section 101.106 as a whole, we consider and give effect to each of its parts. See

State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.

2002) (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (per curiam)). Subsection (e)

controls when a plaintiff sues both the governmental unit and its employee and the governmental

unit moves to dismiss its employee. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). It forces

an election: the employee becomes the non-elected defendant and is dismissed; the governmental

unit remains in the suit as the elected defendant. See Esparza, 2011 WL 4925990, at *5.

Further, in contrast with DPS’s view, subsection (e) conspicuously lacks any express bar against

maintaining suit against the governmental unit after the employee is dismissed. Considering the

subsections’ separate and collective effects, we do not construe the statute as a pleading trap; it

cannot reasonably be read to mean that if a plaintiff sues both a governmental unit and its

employee, subsections (e) and (b) ensure the plaintiff cannot maintain a suit against either one.

See Gonzalez, 82 S.W.3d at 327; see also Jones, 969 S.W.2d at 432.

       3. DPS’s view conflicts with language in Mission

       DPS’s view also conflicts with a more careful reading of Mission. Specifically, the court

stated that “the Tort Claims Act’s election scheme is intended to protect governmental

employees by favoring their early dismissal when a claim regarding the same subject matter is

also made against the governmental employer.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 657 (Tex. 2008) (emphasis added). If the supreme court intended Mission to

declare that when the plaintiff initially sued both the employee and the governmental unit, then

by operation of statute she could not maintain a suit against either, the court could have said so.

Instead, the court included language indicating that the suit against the governmental unit may

proceed: “Under the Tort Claims Act’s election scheme, recovery . . . may be sought against the



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governmental unit . . . when suit is filed against both the governmental unit and its employee

. . . .” See id. (citing section 101.106(e)).

        4. DPS’s view conflicts with City of Houston v. Esparza

        Moreover, DPS’s view also differs from Esparza’s view of the election of remedies

statute. See City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *6S10

(Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g). In Esparza, a case with

similar facts, the City made the same argument DPS makes here: a plaintiff who sues both the

employee and the governmental unit cannot maintain suit against either. Id. at *3. In the City’s

view, the employee is dismissed under subsection (e) and the governmental unit is immune under

subsection (b). Id. The court expressly rejected the City’s argument. Id. at *4, *6.

        Instead, Esparza reasons that where the plaintiff sues both the employee and the

governmental unit, “subsection (e) forces an election upon the claimant: the governmental unit is

the proper defendant and the employee must be dismissed.” Id. at *4; cf. Mission, 253 S.W.3d at

657.   Esparza’s construction achieves the legislature’s goals: it reduces litigation costs by

determining the elected defendant at the outset, protects government employees in the course and

scope of employment by allowing them to be immediately dismissed, and gives the plaintiff’s

election—whether by pleading or operation of statute—irrevocable consequences. See Esparza,

2011 WL 4925990, at *6. Esparza’s construction is also consistent with what seems to be an

unambiguous statement in Mission: “Under the Tort Claims Act’s election scheme, recovery . . .

may be sought against the governmental unit . . . when suit is filed against both the governmental

unit and its employee . . . .” See Mission, 253 S.W.3d at 657 (citing section 101.106(e)).




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                                                     CONCLUSION

        We reject DPS’s view that when a plaintiff sues both a governmental unit and its

employee for actions for which the Texas Tort Claims Act has waived the governmental unit’s

immunity from suit, the plaintiff cannot maintain a suit against either the employee or the

governmental unit. Rather, we believe the plain language of the statute, the supreme court’s

guidance in Mission, and Esparza’s reasoning illuminate the legislature’s intent. We hold that

when a plaintiff sues both the governmental unit and its employee, and the governmental unit

moves to dismiss its employee under section 101.106(e), the governmental unit becomes the

elected defendant, the employee becomes the non-elected defendant, and subsection (a)

immunizes the employee from suit or recovery; the governmental unit cannot then assert

subsection (b)’s immunity for the non-elected defendant. See City of Houston v. Esparza, No.

01-11-00046-CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet.

filed) (op. on reh’g).       This construction fulfills the legislature’s intent: it determines—by

pleading or involuntary election—the elected defendant at the outset, protects government

employees, reduces litigation delays and costs, and gives the plaintiff’s election irrevocable

consequences. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.

2008); Esparza, 2011 WL 4925990, at *4.

        DPS was the elected defendant; subsection (b)’s grant of immunity to a governmental

unit when it is the non-elected defendant does not apply to bar Deakyne’s suit. 7 Therefore, we

overrule DPS’s sole issue and affirm the trial court’s order.



                                                               Rebecca Simmons, Justice


7
 Because subsection (b) does not apply in this case, we do not address the significance of subsection (b)’s phrase
“unless the governmental unit consents.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2005).

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