

Opinion issued May 22, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00196-CV
———————————
The CITY Of houston, Appellant
V.
SAN JUANA
RODRIGUEZ INDIVIDUALLY AND AS NEXT FRIEND OF JUAN RODRIGUEZ, Appellee

 

 
On Appeal from the County Court at Law
Number 4
Harris County, Texas

Trial Court Case No. 979,692
 

 
OPINION
          In
this interlocutory appeal,[1] appellant,the City of
Houston (the “City”), challenges the trial court’s order denying its plea to
the jurisdiction on the tort claims made against it by appellee, San Juana
Rodriguez, individually and as next friend of her son, Juan Rodriguez.In its
sole issue, the City contends that the trial court erred in denying its plea to
the jurisdiction in which the City asserted that, by filing suit against both
it and its employee regarding the same subject matter, Rodriguez “perfected” the
City’s immunity underthe Texas Tort Claims Act.[2]
We affirm.
Background
          In heroriginal
petition, Rodriguez alleges that she and her son sustained personal injuries
when she stopped hercar at a traffic signaland Alberto Estrada, a City
employee, failed to control the speed of hiscity-owned or operated car and
struck her car from behind.  Rodriguez
further alleges that Estrada was operating the car in a negligent manner by
failing to keep a proper lookout and control his speed.  Rodriguez asserts that at the time of the
accident,Estradawas in the course and scope of his employment with the City
and, as such, the City is liablefor his negligence under the doctrine of respondeat
superior.
In its answer, the City generally
deniesRodriguez’sallegations andassertsthat it is entitled to governmental
immunity from Rodriguez’s claims under the Texas Tort Claims Act.[3]   The City also asserts that it cannot be held
vicariously liable for acts of its agents and employees who are entitled to
official immunity.  In his separate
answer, Estrada also generally denies Rodriguez’s allegations and asserts both
governmental and official immunity from her claims.  
In its motion to dismiss
Rodriguez’s claims against Estrada, the City, noting that all of Rodriguez’s
tort theories are brought under the Tort Claims Act, argued that because
Rodriguez sued both the City and Estrada, the trial court was required to dismiss
Estrada from the suit.[4]  The trial court granted the City’s motion and
dismissed all of Rodriguez’s claims against Estrada.  
Shortly thereafter, the City filed
its plea to the jurisdiction, arguing that because Rodriguezhad simultaneously
brought suit against both it and Estrada “regarding the same subject matter,”
Rodriguez “perfected [the City’s] statutory immunity from suit,” which barred
all of her claims.[5]
The trial court denied the City’s
plea.  
Standard of Review
We review de novo a trial court’s
ruling on a jurisdictional plea. See Kalyanaram
v. Univ. of Tex. Sys., 230 S.W.3d 921, 927 (Tex.2007). When reviewing a
trial court’s ruling on a challenge to its jurisdiction, we consider the
plaintiff’s pleadings and factual assertions, as well as any evidence in the
record that is relevant to the jurisdictional issue. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We
construe pleadings liberally in favor of the plaintiffs, look to the pleader’s
intent, and determine whether the pleader has alleged facts affirmatively
demonstrating the court’s jurisdiction. Id.  Allegations found in pleadings may affirmatively
demonstrate or negate the court’s jurisdiction. 
City of Waco v. Kirwan, 298
S.W.3d 618, 622 (Tex. 2009).  
We review the trial court’s
interpretation of a statute de novo. 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. Id.; see alsoTex. 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.”).  If the words of
a statute are clear and unambiguous, we apply them according to their plain and
common meaning.[6]Galbraith Eng’g Consultants, Inc., 290
S.W.3d at 867; City of Rockwall v. Hughes,
246 S.W.3d 621, 625–26 (Tex.2008).
Election of Remedies
In its sole issue, the City argues
that the trial court erred in denying its plea to the jurisdiction because Rodriguez
“perfected” the City’s immunity when she simultaneously filed suit against both
it and its employee regarding the same subject matter.  SeeTex. Civ. Prac. & Rem.Code Ann. § 101.106(b)
(Vernon 2011).
Governmental immunity exists to
protect subdivisions of the State, including municipalities like the City, from
lawsuits and liability for money damages. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex.
2008).  We interpret statutory waivers of
governmental immunity narrowly, as the legislature’s intent to waive immunity
must be clear and unambiguous.  Id.; seeTex. Gov’t Code Ann. § 311.034 (Vernon
Supp. 2011).
The Texas Tort Claims Act provides
a limited waiver of governmental immunity for certain suits against
governmental entities.  SeeTex.
Civ. Prac. & Rem. Code §§ 101.021, 101.023, 101.025 (Vernon 2011).And
it generally 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.” Id. § 101.021.
The City does not dispute that
section 101.021 generally waives its immunity for negligence claims like those
brought byRodriguezfor damages resulting from a car collision allegedly caused
by a City employee.Rather, the City argues that a plaintiff like Rodriguezwho
simultaneously pleads claims against both the City and its employee regarding
the same subject matter is barred from obtaining relief against either the City
or its employee.The City asserts that section 101.106(b), under these
circumstances, “creates [and] grants statutory immunity from suit, separate and
apart from—and independent of common-law governmental immunity from suit.”
Section 101.106, entitled “Election
of Remedies,” provides, in full,
(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 (emphasis added). 
The City’s argument concerning the
operation of the election-of-remedies provision is based upon language
contained in the Texas Supreme Court’s opinion inMission ConsolidatedIndependent
School District v. Garcia,
wherein the court sought to “determine the scope of the Tort Claims Act’s
election-of-remedies provision.”[7] 
253 S.W.3d 653, 655 (Tex. 2008).In Garcia, three
school-district employees whose employment was terminated by thedistrict sued for
violations of the Texas Commission on Human Rights Act (“TCHRA”)[8]
and for common-law intentional infliction of emotional distress.  Id.
at 654–55.  The employees also sued the
superintendent of the district for common-law claims of defamation, fraud, and
negligent misrepresentation.Id.  The district, citing section 101.106(b), filed
a plea to the jurisdiction, arguing that the employees’ decision to sue both
the district and its superintendent barred recovery against the district.  Id.at
655.The trial court denied the district’s
plea, and the court of appeals affirmed, reasoning that section 101.106 did not
apply to the employees’ claims.  Id.The court of appeals interpreted
subsection (a) of section 101.106“to only apply when [a] governmental unit
alone is sued, subsection (b) to only apply when the employee alone is sued,
and subsection (e) to apply when both are sued simultaneously.”  Id.
at 657–58.  The court of appeals also interpreted
subsection (e)’s reference to suits “filed under this chapter” to mean that section
101.106 applied only to suits for whichthe Tort Claims Act waived immunity.Id. at 658.
The supreme court “disagree[d] with the court of appeals’
narrow interpretation,” and it discussed the potential application of both subsections
(b) and (e) to the suit.Id.In regard
to subsection (e),[9]
the court concluded that because the Tort Claims Act is the “only, . . .
limited[] avenue for common-law recovery against the government, all tort
theories alleged 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.”[10]Id. at 659 (citation omitted).  The courtstated that if the district had
filed, pursuant to subsection (e), a motion to dismiss the claims against the superintendent,
hewould have been entitled to dismissal of the employees’ suit against him.[11]Id. 
The court also stated that “if the [district] had obtained [the
superintendent’s] dismissal from the suit under subsection (e), 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].”[12]Id.(citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)).In regard to the employees’ TCHRA claims
against the district, the court explained that these discrimination claims did
not constitute a “suit filed under this chapter” and “would not come within
subsection (e)’s purview because the Tort Claims Act expressly provides that
the remedies it authorizes ‘are in addition to any other legal remedies.’”Id. (citing Tex. Civ. Prac. & Rem. Code Ann.§ 101.003).
The supreme court then turned to consider subsection (b),
which the district argued operated to bar the employees’ “entire suit,”
including the TCHRA claims, “because [the superintendent] was sued as well,
which is all that subsection (b) requires.”Id.  The court agreed 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 court then noted
that, unlike subsections (a), (c), (e), and (f), subsection (b) does not
contain the limiting phrase “under this chapter,” and, “by subsection (b)’s
literal terms, it applies to ‘any suit’ brought against the governmental unit,
provided the other subsection (b) requirements are met.”  Id.
at 559–60.  Noting that subsection (b)
expressly operates to bar suit or recovery against a governmental unit “unless
the governmental unit consents,” the court concluded that because the
legislature consented to suit under the TCHRA, the TCHRA claims would survive the
application of subsection (b), provided the plaintiff met the procedures outlined
in that statute.  Id.
In summarizing its holding concerning the scope of section
101.106, the supreme court stated, 
We hold that the Tort Claims Act’s election-of-remedies provision
applies to bar Garcia’s common-law claims against the ISD, but does not bar her
TCHRA claims.
 
Id. at 660.
Based upon the above language inGarcia, governmental units, like the
City, have argued that section 101.106 creates a “harsh” fatal-filing rule that
immunizes both the governmental unit and its employee when a plaintiff, who has
an otherwise valid immunity-waived tort claim, files suit against both.  Courts of appeals, in addressing these
arguments,have endeavored to interpret the plain language of section 101.106 in
a manner that is both consistent with our supreme court’s precedent and does
not lead to absurd results.  See City of Houston v. Esparza, No.
01-11-00046-CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston [1st Dist.] Oct. 7,
2011, pet. filed); see alsoAmadi v. City of Houston, No. 14-10-01216-CV, 2011 WL 5099184,
at *4–8 (Tex. App.—Houston [14th Dist.] Oct. 27, 2011, pet. filed); Barnum
v. Ngakoue, No. 03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin
Apr. 29, 2011, pet. filed); City of N.
Richland Hills v. Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth
2011, pet. granted).
The City’s argument for a harsh
fatal-filing rule is not entirely without merit considering certain language in
the Garcia opinion.  However, in addition to the languageinGarciathat favors the City’s argument, which
we have detailed above, there is also language suggesting that the supreme court
did not intend to interpret section 101.106 in such a way as to create a fatal-filing
trap that would bar plaintiffs like Rodriguez from court entirely. For example,
in discussing the general purposes of the election-of-remedies provision, the
courtstated that the “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.”  Id. at 657 (emphasis added).  More significantly, the 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).
 
Id. (emphasis
added).In this passage, the court expressly recognized that a plaintiff, like Rodriguez,
who simultaneously files suit against a governmental unit and its employee for
common law tort claims for which immunity has been waived under the Tort Claims
Act is not left without any remedy merely as the result of the simultaneous
filing.  See id.  This is the only
reasonable interpretation of the election-of-remedies provision in the Tort
Claims Act because it is actually in accord with the plain language used by the
legislature: 
(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.
 
Tex. Civ. Prac. & Rem.
Code Ann. § 101.106(e) (emphasis added). 
Presented with the conflicting language
in Garcia, we follow the precedent of
our Court in Esparza, which is in
accord with the plain language used by the legislature in section 101.106(e).  Accordingly, we hold that subsection (b) does not bar Rodriguez
from pursuing her common law tort claims against the City. See id. § 101.106(b), (e);Esparza, 2011 WL 4925990, at *10.  We further hold that the trial court did not
err in denying the City’s plea to the jurisdiction.[13]
We overrule the City’s sole issue.
 
 
 
 
 
 
 
 
 
 
 
 
Conclusion
          We affirm
the order of the trial court.
 
 
                                                                    Terry Jennings
                                                                   Justice 
 
Panel
consists of Justices Jennings, Sharp, and Brown.
Justice
Brown, concurring.




[1]           SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8)
(Vernon Supp. 2011).
 


[2]           See
id. §
101.106(b) (Vernon 2011).
 


[3]           See
id. §§
101.021, 101.025 (Vernon 2011).
 


[4]           See
id. § 101.106(e).
 


[5]           See
id. § 101.106(b).
 


[6]           The Texas Supreme Court has explained that it is
inappropriate to resort to rules of construction or extrinsic aids to construe statutory
language that is clear and unambiguous and we must construe a statute’s words
according to their plain and common meaning unless a contrary intention is
apparent from the context or unless such a construction leads to absurd
results. City of Rockwall v. Hughes, 246
S.W.3d 621, 625–26 (Tex.2008).  It has
also noted the presumption in the Texas Code Construction Act that the legislature
intended a just and reasonable result by enacting a statute. See id. (citing Tex. Gov’t Code Ann.§ 311.021(3) (Vernon 2005)); see also Tex. Gov’t Code Ann. §311.021(2) (Vernon 2005)
(providingpresumption that “entire statute” is intended to be effective); id. § 311.023 (Vernon 2005) (providing that, in construing statute, regardless
of ambiguity, court may consider, among other things, “(1) object sought to be
attained; (2) circumstances under which the statute was enacted; (3)
legislative history; (4) common law or former statutory provisions, including
laws on the same or similar subjects; (5) consequences of a particular
construction; (6) administrative construction of the statute; and (7) title
(caption), preamble, and emergency provision”). 



[7]           Before
addressing the facts before it, the court analyzed the history of the
election-of-remedies provision and explained that, in 1985, the legislature
enacted the prior version of the election-of-remedies provision to respond to
plaintiffs who were circumventing the Texas Tort Claims Act’s damages caps “or
other strictures” and to protect government employees.  Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655–56
(Tex.
2008).    The court noted that in 2003, as part of a
comprehensive effort to reform the tort system, the legislature further amended
the provision with the purpose of forcing “a plaintiff to decide at the outset
whether an employee acted independently” or, instead, “within the general scope
of his or her employment such that the governmental unit is vicariously
liable.”  Id. at 656–57.  The amendment
compelled a plaintiff to make “an irrevocable election” at the time of filing a
lawsuit so as to “narrow[] the issues for trial and reduce[] delay and
duplicative litigation costs.”  Id. at 657.
 


[8]           SeeTex.
Lab.Code Ann.
§§ 21.001–21.556 (Vernon 2006).
 


[9]           The
supreme court noted that the court of appeals had held “that only subsection
(e) of section 101.106 could apply” to the employees’ claims since the
employees sued the district and the superintendent together.  Garcia, 253 S.W.3d at658. 
The court suggested that
the court of appeals erred in concluding that only subsection (e) applies when a
plaintiff sues both a governmental unit and its employee.  See id.
 


[10]         This matter is not disputed in the
instant case.
 


[11]         The
court acknowledged that the
district had not sought dismissal of the employees’ claims against the
superintendent and he himself had not sought dismissal of the claims made
against him.Garcia, 253 S.W.3d at 659.
 


[12]         The supreme court did not explain why
“all . . . tort claims against [the district] would be barred.”  Id. at659.As noted above, it is undisputed that there
was no valid waiver of immunity for any of the employees’ common law tort
claims, but the court
suggested that the tort claims against the district were barred as a result of
the operation of section 101.106.  Id. at654.  Additionally, and somewhat confusingly, in
support of this proposition, the court cites subsection (e), which only
requires the dismissal of claims against an employee.   


[13]         We contemporaneously issue an opinion
in another case addressing the application of section 101.106 to a plaintiff
who initially sued both the City and its employee for injuries sustained in a
car collision but then voluntarily non-suited the claims against the
employee.  See City of Houston v. Vallejo, No. 01-11-00133-CV (Tex.
App.—Houston [1st Dist.] May 22, 2012, no pet. h.).  In that case, we similarly hold that section 101.106(b)
does not require dismissal of the plaintiff’s immunity-waived tort claims
against the City after the plaintiff voluntarily non-suits her claims against
the employee.  See id.


