Motion for Rehearing Overruled; Opinion filed August 25, 2011, Withdrawn;
Reversed and Rendered and Substitute Opinion on Rehearing filed December 8,
2011.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-10-01232-CV

                         STEPHEN FONTENOT, Appellant

                                          V.

                           TIFFANY STINSON, Appellee

                       On Appeal from the 61st District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-72561



            SUBSTITUTE OPINION ON REHEARING

      We overrule the motion for rehearing, withdraw our opinion dated August 25,
2011, and issue the following substitute opinion. Stephen Fontenot, a deputy with the
Harris County Sheriff‘s Office, appeals from the trial court‘s order denying his motion
for summary judgment, in which he claimed immunity under subsections (a), (e), and (f)
of the election-of-remedies provision of the Texas Tort Claims Act (TTCA). See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e), (f) (West 2011).          We hold that
subsection (a) applies in this case to bar suit against Fontenot. We reverse the trial
court‘s order and render judgment that Stinson take nothing.

                                          BACKGROUND

       On December 12, 2008, Tiffany Stinson filed an original petition in this case
against Fontenot. The petition included claims for various intentional torts, including
slander, civil conspiracy, ―trespass, assault and battery, intentional infliction of emotional
distress, wrongful arrest, false imprisonment, and malicious prosecution.‖ On December
29, 2008, Stinson filed a complaint in federal district court against Harris County and
Sheriff Tommy Thomas. Stinson and Fontenot dispute whether those claims were based
on federal statute or common law.

       On February 24, 2009, Fontenot removed the state court proceeding to federal
court. On March 12, 2009, Harris County and Thomas each moved to dismiss for failure
to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See FED. R.
CIV. P. 12(b)(6).1 On March 30, 2009, the suits against Fontenot, Harris County, and
Thomas were consolidated in federal court. Stinson did not respond to the motions to
dismiss, and in April 2009, the federal court granted Harris County‘s and Thomas‘s
motions to dismiss for failure to state a claim. Stinson moved to reconsider, 2 and the
federal court granted Stinson‘s motion in part but eventually granted both Harris
County‘s and Thomas‘s motions to dismiss. In July 2009, the federal court rendered a
final judgment in favor of Harris County and Thomas and ―reactivated‖ the case against
Fontenot ―to proceed with all pretrial discovery and motion matters relating to it.‖



       1
          Harris County‘s motion was styled: ―Defendant Harris County, Texas‘ Motion to Dismiss for
Failure to State a Claim — Fed. R. Civ. P. 12b(6).‖ But in one of the twenty-seven paragraphs of Harris
County‘s motion, Harris County stated, ―The plaintiff elected to sue both Harris County and its
employees. Harris County moves for immediate dismissal of all state law claims against all named and
unnamed individual defendants under Tex. Civ. Prac. & Rem. Code § 101.106(e).‖
       2
         Harris County responded to the motion to reconsider with ―corrections of fact,‖ noting that
―Deputy Fontenot remains in this case.‖
                                                  2
        After the period for discovery ended in December 2009, Fontenot moved for
summary judgment on five grounds, one of which was subsection (e) of the election-of-
remedies provision.3 In response, Stinson argued that the federal court lacked subject
matter jurisdiction, and thus, the case should be remanded to state court. The federal
court denied Fontenot‘s motion and remanded the case for lack of subject matter
jurisdiction.    The court noted that ―only Stinson‘s claims against Deputy Fontenot
remain.‖

        On remand to the 61st District Court of Harris County, Texas, Fontenot moved for
summary judgment, arguing that he was immune from suit under subsections (a), (e), and
(f) of the election-of-remedies provision. After additional briefing, the trial court denied
the motion, and this appeal followed.

                                                ANALYSIS

        Under the Texas Tort Claim Act‘s election-of-remedies provision, plaintiffs who
are injured by governmental employees must make a sometimes difficult choice of
whether they wish to pursue tort claims against either the employee or the employer.
―Because 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.‖ Mission Consol. Indep.
Sch. Dist v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). ―A plaintiff‘s unwise choice may
result in a bar to recovery from both the governmental unit and its employee.‖ Tex. Tech
Univ. Health Sci. Ctr. v. Williams, 344 S.W.3d 508, 512–13 (Tex. App.—El Paso 2011,
no pet. h.); accord Huntsville Indep. Sch. Dist. v. Briggs, 262 S.W.3d 390, 393 (Tex.
App.—Waco 2008, pet. denied).

        In this case, Stinson elected to sue Fontenot in state court for common law torts
and then elected to sue Harris County in federal court for common law torts. Her
        3
         Fontenot explained in the motion, ―It is not clear that the court dismissed the state claims against
Deputy Fontenot. . . . Deputy Fontenot asks for confirmation that the court dismissed all pendant state
claims against him under the Texas statute.‖
                                                     3
decision to sue both defendants for common law torts regarding the same subject matter
means that her suit against Fontenot is barred under subsection (a) of the TTCA‘s
election-of-remedies provision.

A. Standard of Review

       We apply the same standard of review for the denial of a summary judgment as for
the granting of a summary judgment. Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.—
Houston [14th Dist.] 1994, writ denied). A defendant is entitled to summary judgment on
an affirmative defense such as immunity if he expressly presents and conclusively proves
each element of the defense. Id. We indulge reasonable inferences and resolve any
doubts regarding the summary judgment evidence in favor of the nonmovant.             Id.
Further, we review matters of statutory construction de novo, and our ―standard of review
is determined by the substance of the issues to be determined rather than by the type of
motion to which the trial court‘s order pertains.‖ Hintz v. Lally, 305 S.W.3d 761, 765
(Tex. App.—Houston [14th Dist.] 2009, pet. denied).

B. General Principles of the TTCA and the Election-of-Remedies Provision

       The TTCA provides a limited waiver of sovereign and governmental immunity for
certain suits against governmental units. Amadi v. City of Houston, No. 14-10-01216-
CV, — S.W.3d —, 2011 WL 5099184, at *2 (Tex. App.—Houston [14th Dist.] Oct. 27,
2011, pet. filed) (op. on reh‘g en banc) (citing TEX. CIV. PRAC. & REM. CODE ANN. §§
101.001–.009 (West 2011)). The statute, however, does not waive immunity for suits
alleging intentional torts. Seureau v. Exxon Mobil Corp., 274 S.W.3d 206, 219 n.11
(Tex. App.—Houston [14th Dist.] 2008, no pet.); see TEX. CIV. PRAC. & REM. CODE
ANN. § 101.057 (West 2011). Among other restrictions, the statute also caps recoverable
damages against governmental units. TEX. CIV. PRAC. & REM. CODE ANN. § 101.023
(West 2011); Amadi, 2011 WL 5099184, at *2.

       We recently discussed the history of the TTCA‘s election-of-remedies provision
and why the Legislature first enacted it:
                                            4
        In the past, claimants often chose to sue the employee of a governmental
        unit, rather than the governmental unit itself, to avoid the TTCA‘s
        restrictions. This strategy was sometimes successful because claims against
        employees were not always subject to the TTCA. In an effort to prevent
        this gamesmanship and to protect governmental employees, the Legislature
        enacted an election-of-remedies provision.

Amadi, 2011 WL 5099184, at *2 (citing Garcia, 253 S.W.3d at 656).4

        Although the original provision protected employees from being sued when claims
against the governmental unit were settled or reduced to judgment, ―nothing prevented a
plaintiff from pursuing alternative theories against both employees and the governmental
unit through trial or other final resolution.‖ Id. For example, plaintiffs could sue a
governmental unit for claims subject to the TTCA‘s waiver of immunity, which includes
certain types of negligence claims, while simultaneously pursuing claims against the
employee for intentional torts based on the same underlying conduct. The Legislature
eliminated this practice in 2003 by enacting the current version of the election-of-
remedies provision, in relevant part:

        (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.

        ....



        4
         As originally enacted, the provision read as follows: ―A judgment in an action or a settlement of
a claim under this chapter bars any action involving the same subject matter by the claimant against the
employee of the governmental unit whose act or omission gave rise to the claim.‖ 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).
                                                    5
       (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. The purpose of this amendment was to

       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,
       thereby reducing 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 plaintiffs to make an irrevocable election, the
statute reduces delay and duplicative litigation costs incurred from defending against
alternative theories of liability. Id. The statute 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.

       The plain language and underlying policy of the election-of-remedies provision
favors dismissing employees when the government is also sued. The statute‘s ―door
swings in just one direction: away from the employee and toward the governmental
employer.‖ Amadi, 2011 WL 5099184, at *4. ―This one-way door 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.‖ Hintz, 305 S.W.3d at 769.




                                             6
C. Stinson’s Suit in Federal Court was Brought “Under this Chapter”

       Subsections (a), (c), (e), and (f) of the election-of-remedies provision reference
suits that are filed or brought ―under this chapter.‖ This phrase has the same meaning
throughout the statute, see Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011), and it
includes any suit in which the plaintiff alleges a common law tort claim, regardless of
whether the TTCA waives immunity for the claim, id. at 369. Thus, a suit alleging
intentional torts against a governmental unit is a suit ―under this chapter‖ for purposes of
subsection (a). See Garcia, 253 S.W.3d at 659 (interpreting subsection (e)). A federal
statutory claim brought under 42 U.S.C. § 1983 (2006), however, is not a suit ―under this
chapter.‖ See Whitesell v. Newsome, 138 S.W.3d 393, 396 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied) (holding that section 101.106 did not bar the plaintiff‘s claims
against the employee when a prior federal court‘s judgment in favor of the governmental
unit was based solely on § 1983 claims involving the same subject matter).5

       Accordingly, the nature of Stinson‘s claims against Harris County in federal court
affects whether the election-of-remedies provision may apply to her suit against Fontenot.
Stinson argues that her claims against Harris County were brought solely under federal
law, and thus, the election-of-remedies provision does not apply. We disagree.

       Although Stinson attempted to allege § 1983 claims against Harris County and
Thomas, she also unambiguously alleged common law tort claims against Harris County.
Fontenot attached to his motion for summary judgment a copy of the complaint Stinson
filed in federal court, which includes, among others, the following paragraphs:

       2. Defendant, Harris County, Texas may be served with process by
       serving the County Judge Ed Emmett. . . .




        5 See also TEX. CIV. PRAC. & REM. CODE ANN. § 101.003 (―The remedies authorized by this
chapter are in addition to any other legal remedies.‖); Green v. Nueces Cnty., Tex., No. C-09-316, 2010
WL 918972, at *5 (S.D. Tex. Mar. 15, 2010) (―It is well established that a Section 1983 claim is not a
claim brought ‗under the [TTCA].‘‖ (alteration in original)).
                                                  7
        3. Defendant, Harris County Sheriff Tommy Thomas, in his individual
        and in his official capacity, may be served with process at 1200 Baker St,
        Houston, Texas, 77002. . . .

        ....

        20. Defendants individually conspired against Plaintiff to cause Plaintiff
        harm. Plaintiff seeks damages, both actual and compensatory for
        Defendant‘s trespass, assault and battery, intentional infliction of emotional
        distress, wrongful arrest, false imprisonment, and malicious prosecution.

        ....

        33. Upon information and belief, two or more Defendants conspired with
        intent to deny Stinson rights under the laws of the state of Texas.

        In paragraphs two and three, Stinson identified the only two defendants in the
federal suit as ―Harris County‖ and ―Tommy Thomas, in his individual and official
capacity.‖ Stinson then alleged liability for common law intentional torts committed by
―Defendants‖ and ―Defendant,‖ which must be construed in accordance with paragraphs
two and three of the petition. See Singleton v. Casteel, 267 S.W.3d 547, 552 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied) (concluding the plaintiff‘s claim for
malicious prosecution was brought against both the governmental unit and its employees,
despite the plaintiff‘s argument that the claim was brought solely against the employees,
because the plaintiff used the word ―Defendants‖ in connection with the malicious
prosecution claim and referred to all of the defendants collectively as ―Defendants‖).6 In
addition to the torts listed in paragraph twenty, Stinson specifically sued ―Defendants‖
for an intentional conspiracy ―to deny Stinson rights under the laws of the state of
Texas.‖ Civil conspiracy is a common law intentional tort. See Massey v. Armco Steel
Co., 652 S.W.2d 932, 933–34 (Tex. 1983).



        6
          See also Ramsey v. Stephenson, No. C-09-170, 2010 WL 173612, at *4 (S.D. Tex. Jan. 13,
2010) (reasoning that the plaintiffs‘ claims for intentional infliction of emotional distress and malicious
prosecution were brought against both the governmental unit and its employees because the clams were
―broadly brought against ‗Defendants‘‖ and the employees were sued in their official capacities).
                                                    8
        Stinson did not carefully allege tort claims only against Thomas in his individual
capacity; instead, she broadly alleged tort claims against all defendants, which included
Harris County. See Kelemen v. Elliot, 260 S.W.3d 518, 522–23 (Tex. App.—Houston
[1st Dist.] 2008, no pet.) (concluding that subsection (e) did not require dismissal of the
employee when the plaintiff sued the governmental unit and the employee together for
―distinct conduct‖; only statutory claims were brought against the governmental unit
while only tort claims were brought against the employee).7

        Thus, Fontenot has conclusively established that Stinson brought common law tort
claims against Harris County; and for purposes of section 101.106(a), Stinson filed ―a
suit under this chapter against a governmental unit.‖8

D. Fontenot is Immune Under Section 101.106(a)

        Fontenot argues that the filing of the second suit against Harris County bars
Stinson‘s suit against Fontenot because Stinson made an irrevocable election to sue
Harris County. Stinson responds that the filing of her first suit solely against Fontenot
constitutes the only possible irrevocable election, and a holding that subsection (a) bars
suit against Fontenot in this case would render subsection (b) meaningless.

        The First Court of Appeals recently held that the order in which a plaintiff sues
both the governmental unit and the employee in separate suits controls which
subsection—either (a) or (b)—may apply. See Alexander v. Walker, No. 01-10-00147-
CV, — S.W.3d —, 2011 WL 2500482 (Tex. App.—Houston [1st Dist.] June 23, 2011,
pet. filed). The case presented identical facts: the plaintiff first sued the employees in

        7
          See also Green, 2010 WL 918972, at *5 (refusing to dismiss the employees under subsection (e)
because the plaintiff carefully asserted tort claims only against the employees while asserting § 1983
claims against both the governmental unit and the employees; noting the statement in the plaintiff‘s
complaint under the intentional tort section that ―the claims brought by Plaintiff under this section only
apply to the individual Defendants‖)
        8
          The fact that Stinson may have also alleged § 1983 claims against Harris County does not alter
our conclusion. See. Garcia, 253 S.W.3d at 659 (concluding that the suit was brought ―under this
chapter‖ against a governmental unit when both a statutory claim not subject to the TTCA and common
law tort claims were brought against the governmental unit).
                                                    9
state court and then sued the governmental unit in federal court for the same common law
intentional torts. Id. at *1. The First Court concluded that as between subsections (a) and
(b), only subsection (b) could apply because the first suit filed against the employees was
the plaintiff‘s sole irrevocable election under the statute. Id. at *5. Thus, the court held
that subsection (a) only applies when the government is sued first, and subsection (b)
only applies when the employee is sued first. See id. The court reasoned that applying
subsection (a) in this scenario would render subsection (b) meaningless. Id. The court
stated that its interpretation was based on ―the straightforward effect of who sued whom
first.‖ Id.

       The First Court‘s reasoning, however, conflicts with the supreme court‘s holding
in Garcia, which we must follow. See Univ. of Tex. Health Sci. Ctr. at Houston v.
Crowder, 349 S.W.3d 640, 648 (Tex. App.—Houston [14th Dist.] 2011, no pet.). In
Garcia, the supreme court held that the plaintiffs‘ common law claims against a
governmental unit were barred under subsection (b) in a case in which the plaintiffs sued
both the governmental unit and its employee. See 253 S.W.3d at 654, 660.

       In Garcia, the plaintiffs sued a governmental unit and its employee both for non-
TTCA statutory claims and for common law torts. Id. at 657. The governmental unit did
not move for a dismissal of its employee under subsection (e); rather, it moved for
dismissal of all claims against it only under subsection (b). Id. at 657, 659. The trial
court denied the motion, and the court of appeals affirmed. Id. at 657. Reversing in part,
the supreme court summarized the reasoning of the court of appeals:

       The court of appeals read subsection (a) of the election-of-remedies
       provision to only apply when the 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. The court
       concluded that only subsection (e) could apply in this case because the
       [governmental unit] and [the employee] were sued together.

Id. at 657–58 (citations omitted).     The supreme court disagreed with the ―narrow
interpretation‖ of the court of appeals, id. at 658, and concluded that the common law
                                            10
claims against the governmental unit should have been dismissed under subsection (b),
id. at 660.9 Under the holding in Garcia, a governmental unit may seek dismissal under
subsection (b) even if the plaintiff initially sued both the governmental unit and its
employee. See id. 654, 660. This holding demonstrates that the determination of whether
subsection (b) applies does not depend on the straightforward effect of who sued whom
first.

         The supreme court has stated that the subsections of section 101.106 should be
construed in a consistent manner. See Franka, 332 S.W.3d at 379; Crowder, 349 S.W.3d
at 648. If subsection (b) applies to a suit in which the plaintiff initially sues both the
governmental unit and its employee, it would be inconsistent if subsection (a) did not also
apply to this suit.

         Stinson argues that applying subsection (a) in this case renders subsection (b)
meaningless because it is tantamount to saying that she made two irrevocable elections,
or that she revoked her irrevocable election to sue Fontenot by filing suit against Harris
County. However, following the guidance of Garcia and the supreme court‘s admonition
to construe the subsections of section 101.106 in a consistent manner, we conclude that
under binding precedent from the supreme court, subsections (a) and (b) can both apply
in a single suit or to a plaintiff‘s claims in separate suits against a governmental unit and
its employee. Thus, a plaintiff may irrevocably elect to sue both the governmental unit
and the employee. And when a plaintiff makes such a choice, subsections (a) and (b)
may bar the plaintiff‘s suit, except to the extent that the Legislature has waived the
governmental unit‘s immunity. See Garcia, 253 S.W.3d at 660 (holding that subsection
(b) did not bar a claim against a governmental unit because the Legislature waived



         9
           In another part of its opinion, the Garcia court cited subsection (a) for the proposition that
recovery against the employee is barred and recovery may be sought only against the governmental unit
when the plaintiff files suit against the governmental unit only. See Garcia, 253 S.W.3d at 657. But in
citing subsection (a), the Garcia court did not state that this subsection applies only to situations in which
the plaintiff sues the governmental unit alone. See id.
                                                     11
immunity); Amadi, 2011 WL 5099184 at *4–5, 8 (same); see also TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106(b).

        Accordingly, when Stinson filed suit against Harris County, the filing constituted
an irrevocable election against Harris County and immediately and forever barred any
suit or recovery against Fontenot regarding the same subject matter. This conclusion is
not altered by the fact that her suit against Harris County was the second-filed suit.10 See
Hintz, 305 S.W.3d at 771 (explaining that the ―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 holding that subsection (a) barred suit
against the employee when the plaintiff first sued the employee, then substituted the
governmental unit for the employee under subsection (f), and then attempted to reassert
claims against the employee).

        We reverse the trial court‘s order denying summary judgment and render
judgment that Stinson take nothing.11




                                        /s/             Sharon McCally
                                                        Justice



Panel consists of Justices Frost, Jamison, and McCally.



10
   Stinson argues that the TTCA, as applied to her, violates the Open Courts provision of the Texas
Constitution and the Due Process Clause of the United States Constitution. Stinson did not raise any of
these constitutional arguments in the trial court. Therefore, Stinson has not preserved error, and we do
not address these constitutional issues. See TEX. R. APP. P. 33.1(a); Dreyer v. Greene, 871 S.W.2d 697,
698 (Tex. 1993); CHCA Mainland, L.P. v. Dickie, No. 14-07-00831-CV, 2008 WL 3931870, at *2 n.1
(Tex. App.—Houston [14th Dist.] Aug. 21, 2008, no pet.) (mem. op.).
        11
           Because we conclude that subsection (a) bars all of Stinson‘s claims, we need not address the
parties‘ arguments regarding subsections (e) and (f). See TEX. R. APP. P. 47.1.
                                                  12
