Affirmed and Memorandum Opinion filed February 23, 2012.




                                              In The

                        Fourteenth Court of Appeals

                                     NO. 14-11-00648-CV

                              CITY OF HOUSTON, Appellant

                                                V.

                       PRINCESS ELAINE STEWART, Appellees

                         On Appeal from the 157th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2011-10623



                           MEMORANDUM OPINION

       In this interlocutory appeal, the City of Houston appeals from the trial court's order
denying its plea to the jurisdiction on the negligence claims of appellee Princess Elaine
Stewart.1 We affirm.

                                         BACKGROUND

       Appellee simultaneously sued the City and its employee Edgard Cerpas for
negligence alleging that Cerpas was driving a vehicle owned by the City when he caused
       1
          See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (permitting interlocutory
appeals from a court order that grants or denies a plea to the jurisdiction by a governmental unit).
a collision with the vehicle occupied by Stewart, resulting in personal injury to Stewart.
The City filed a motion to dismiss the claims against Cerpas pursuant to the election-of-
remedies provision of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem.
Code Ann. § 101.106(e) (West 2011). The trial court granted the City’s motion to
dismiss the claims against Cerpas.       The City then filed a plea to the jursidiction,
contending that appellee's 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
denied the City'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) (per curiam); Miranda, 133 S.W.3d at 228.

                                         ANALYSIS

       The City asserts the trial court erred by denying its plea to the jurisdiction.
Specifically, the City argues it is entitled to the dismissal of appellee's claims against it
pursuant to section 101.106(b) because appellee made an irrevocable election to sue its
employee, thus barring all claims against the City.

       Section 101.106(e) 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). If the governmental unit files a
motion to dismiss the claims against its employee under section 101.106(e), the trial court
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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). That occurred in this case.

       However, the City further sought the dismissal of appellee's claims against the
City 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).

       The City 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, the City 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 and its employee. See Amadi v. City of Houston, No. 14-10-01216-
CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th Dist.] Oct. 27,
2011, pet. filed) (op. on reh’g en banc); see also City of Houston v. Rodriguez, No. 14-11-
00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston [14th Dist.]
Nov. 3, 2011, pet. filed) (op. on reh’g).

       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, the City consented to suit based on the
negligent use or operation of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021 (West 2011) (providing for a waiver of immunity for property damage
                                            3
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 5099184, at *4. Moreover, Garcia is distinguishable because, unlike in
this case, the governmental unit had not waived its immunity to suit for the plaintiffs' tort
claims. See Amadi, 2011 WL 5099184, at *5.

       Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against the City and Cerpas does not bar appellee's suit against the City because the
City 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 the City was not entitled to dismissal
pursuant to section 101.106(b), we overrule its sole issue and affirm the trial court’s
judgment.

                                          PER CURIAM

Panel consists of Justices Frost, Brown, and Christopher.




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