Affirmed and Opinion filed September 24, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00930-CV

                       CITY OF HOUSTON, Appellant
                                        V.

                     ESTER MEDINA OWENS, Appellee

                    On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-26899

                                OPINION

        Appellant, the City of Houston, appeals the denial of its plea to the
jurisdiction. The City argues that because appellee, Ester Medina Owens, elected
to sue the City and its employee simultaneously, Owens’s suit against the City is
“forever bar[red]” under section 101.106(b) of the Civil Practice and Remedies
Code.    We disagree because section 101.106(b) does not bar suits when the
governmental unit consents to suit, and we have previously held that this “consent”
includes waivers of municipal immunity under the Texas Tort Claims Act. Here,
the Tort Claims Act waives the City’s immunity, so it has consented to this suit
and cannot obtain dismissal under 101.106(b). We therefore affirm.

                                   BACKGROUND

      Owens alleges that the City’s employee, a police officer, was driving an
unmarked police vehicle and ran into her vehicle. Owens sued both the City and
the employee. The City moved to dismiss the employee under section 101.106(e)
of the Civil Practice and Remedies Code, which 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) (West 2012).
The trial court granted the motion and dismissed the employee.

      The City then filed a plea to the jurisdiction seeking its own dismissal
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.” Id. § 101.106(b). The City argued that by suing the employee as well
as the City, Owens had irrevocably elected to sue only the employee. As a result,
the City argued, any suit against it was forever barred. The trial court denied the
City’s plea to the jurisdiction, and this interlocutory appeal followed. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2012).

                                      ANALYSIS

      In a single issue, the City argues that the trial court erred by denying its plea
to the jurisdiction, which should have been granted based upon section 101.106(b).


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We disagree.

I.     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.). We review the trial court’s ruling on a plea to the jurisdiction de
novo. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam).
II.    The trial court properly denied the City’s plea to the jurisdiction.
       Section 101.106 “requir[es] a plaintiff to make an irrevocable election at the
time suit is filed between suing the governmental unit under the Tort Claims Act or
proceeding against [a government] employee alone.” Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). But courts have struggled with
exactly what to do when, as here, a plaintiff sues both. See generally Brant E.
Wischnewsky, Comment, “Election” of Remedies: The City of Houston, the Sister
Courts, and the Mission to Interpret the Tort Claims Act, 50 HOUS. L. REV. 1507
(2013).

       We addressed the issue in Amadi v. City of Houston, 369 S.W.3d 254, 257–
62 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). In that case, as in this
one, the plaintiff sued the City of Houston and its employee simultaneously. Id. at
256. After the plaintiff non-suited the employee defendant, the City argued that
subsection 101.106(b) barred the plaintiff’s claim against it as well.1 Id.

       We observed that although 101.106(b) may “immediately and forever bar[ ]

       1
         Here, the employee defendant was not non-suited, but the City obtained his dismissal
under subsection 101.106(e). This distinction does not affect our analysis, nor does the City
argue that it should. Moreover, we have already applied Amadi’s definition of consent to an
employee dismissed under subsection 101.106(e). See City of Houston v. Stewart, No. 14-11-
00648-CV, 2012 WL 589578, at *1–*2 (Tex. App.—Houston [14th Dist.] Feb. 23, 2012, pet.
denied) (mem. op.) (per curiam).

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any suit . . . against the governmental unit,” this bar does not apply if “the
governmental unit consents.” Id. at 259. We held that “consent[ ]” as used in
101.106(b) includes the express waiver of municipal immunity in section 101.021
of the Civil Practice and Remedies Code.                Id.    Under that section, “[a]
governmental unit . . . is liable for” certain damages “aris[ing] from the operation
or use of a motor-driven vehicle.”             Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(1)(A); see City of Houston v. Ranjel, No. 14-12-00458-CV, 2013 WL
3945971, at *5–6 (Tex. App.—Houston [14th Dist.] Aug. 1, 2013, no pet.).
Because the plaintiff in Amadi alleged facts that brought her within this waiver of
immunity, we held that the City had consented to suit and section 101.106(b) did
not bar the plaintiff’s claims. Amadi, 369 S.W.3d at 262.

       Similarly here, Owens alleges facts giving rise to section 101.021’s consent
to sue, and the City does not argue otherwise or attempt to distinguish Amadi.
Instead, the City contends that we should “re-assess [our] prior holdings.” In
particular, it argues that our holding in Amadi is contrary to the Texas Supreme
Court’s interpretation of section 101.106 in Garcia, 253 S.W.3d at 655, and our
sister court’s interpretation of the statute in City of Houston v. Esparza, 369
S.W.3d 238 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (op. on reh’g).2

       This Court’s opinion in Amadi analyzed both of these authorities at length,
however. 369 S.W.3d at 259–61. Thus, our panel is bound to follow Amadi absent
an intervening change in controlling authority. See Chase Home Fin., L.L.C. v.
Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th
Dist.] 2010, no pet.).

       2
         We note that the Esparza court’s construction of 101.106(b) also would not allow the
City to escape liability simply because Owens simultaneously sued the City and its employee.
See Esparza 369 S.W.3d at 253–54 (holding that where city obtained dismissal of employee
under subsection (e), subsection (b) did not bar plaintiff from pursuing claim against city).

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       The supreme court recently denied the petition for review in Amadi and
provided further guidance regarding section 101.106 in Texas Adjutant General’s
Office v. Ngakoue, No. 11-0686, 2013 WL 4608867 (Tex. Aug. 30, 2013).
Although the supreme court did not reach the issue of “consent” in Ngakoue
because it held that subsection (b) did not apply, it explicitly endorsed the
interpretation the City asks us to reassess here, holding that Garcia does not
require “consent” under subsection (b) to arise from a statutory waiver of
immunity outside the Texas Tort Claims Act itself. Id. at *4.3

       Furthermore, Ngakoue’s discussion of subsection (b) provides an additional
reason—independent of consent—for holding that a governmental unit cannot
invoke subsection (b)’s bar against suit on facts like those here. See id. The
supreme court held that a suit against an employee does not trigger subsection (b)
when the employee is sued in his official capacity only—for example, when the
suit is based on conduct within the general scope of the employee’s employment
for which the governmental unit could be sued under the Tort Claims Act. Id. at
*6–7. Here, Owens alleged the City’s employee was acting within the scope of his
employment, and the City effectively agreed by filing its motion to dismiss the
employee under subsection (e). Thus, Ngakoue confirms that subsection (b) does
not bar Owens’s remaining claims against the City.

       For these reasons, we conclude there has been no change in controlling
authority since Amadi that would alter the outcome of our immunity analysis. We
therefore hold that the trial court properly denied of the City’s plea to the
jurisdiction.


       3
         Consistent with Amadi, the supreme court also suggested in dicta that suit may proceed
against a governmental unit regardless of the procedure followed to dismiss the employee.
Ngakoue, 2013 WL 4608867 at *6 n.10; see also Amadi, 369 S.W.3d at 259–261.

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                                       CONCLUSION

      We overrule the City’s sole issue and affirm the trial court’s order denying
the City’s plea to the jurisdiction.




                                         /s/       J. Brett Busby
                                                   Justice


Panel consists of Justices Boyce, Jamison, and Busby.




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