                            NUMBER 13-11-00789-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TEXAS PARKS AND
WILDLIFE DEPARTMENT,                                                         Appellant,

                                           v.

ANA G. RUIZ,                                                                Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant, the Texas Parks and Wildlife Department ("the Department"), brings this

interlocutory appeal with respect to the trial court's order denying its motion to dismiss

pursuant to section 101.106(b) of the Texas Civil Practice and Remedies Code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2011).            By one issue, the
Department claims that the suit brought by Ana G. Ruiz, appellee, is barred by section

101.106(b) because she originally filed suit against both the governmental employee and

the governmental unit. We affirm.

                                        I. BACKGROUND

      Appellee brought suit against the Department and its employee, Kevin C.

McDonald, alleging that McDonald failed to yield the right-of-way, causing a collision and

personal injury to her. The Department moved to dismiss the case against McDonald

pursuant to section 101.106(e) of the Civil Practice and Remedies Code, which provides:

      (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). Thereafter, appellee filed a notice of

non-suit with respect to her claim against McDonald. The court signed an order granting

the non-suit. On October 17, 2010, the Department filed a motion to dismiss pursuant to

section 101.106(b). That section 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 government unit consents.

Id. § 101.106(b). The trial court denied the motion to dismiss.

                                    II. STANDARD OF REVIEW

      A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction to

hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v.

Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied). Whether a governmental entity is immune from suit is a question of

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subject-matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). The existence of subject-matter jurisdiction is a question of law that we review de

novo. State Dep't of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.

2002); Kamel, 333 S.W.3d at 681. We may not presume the existence of subject-matter

jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993);

Kamel, 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not

consider the merits of the case, but only the plaintiff's pleadings and the evidence

pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555

(Tex. 2002); Kamel, 333 S.W.3d at 681.

       The resolution of this case requires statutory construction. We construe a statute

to give effect to legislative intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002);

Amadi v. City of Houston, 369 S.W.3d 254, 256 Tex. App.—Houston [14th Dist.] 2011,

pet. filed) (en banc). The statute should be read as a whole and be interpreted to give

effect to every part. Gonzalez, 82 S.W.3d at 327. The question before us is whether

the Department is entitled to dismissal pursuant to section 101.106(b) of the Texas Civil

Practice and Remedies Code because of its allegation that appellee made an irrevocable

election to sue both the employee and the governmental entity.

                                          III. ANALYSIS

       By way of background, the Texas Tort Claims Act provides a limited waiver of

immunity for certain suits against governmental units. TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.001–.109. (West 2011). With respect to the facts at issue here, the Tort Claims


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Act provides that immunity is waived to the extent that liability arises from the “use of a

motor-driven vehicle or motor-driven equipment” by an employee acting within the course

and scope of his employment or from “a condition or use of tangible personal or real

property.” Id. § 101.021.

        The Department argues in its issue that its motion to dismiss should have been

granted because appellee sued both the governmental unit and its employee in the same

suit, and supreme court authority requires that a plaintiff must decide to sue either the

employee or the entity before filing suit. See Mission Consol. I.S.D. v. Garcia, 253

S.W.3d 653, 655 (Tex. 2008).                The Department relies upon language in Mission

Consolidated that states, “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. at 659. The

Department urges that sections (b) and (e) apply without reference to one another when a

claimant sues both the government and its employee together, requiring both defendants

to be dismissed. Importantly, subsection 101.106(b) is qualified by a consent exception:

it bars suit against a governmental unit unless “the governmental unit consents.” Id. §

101.106(b).

        Appellee argues that the claims against the governmental entity survive because

there is a waiver of immunity; the government consented to suit through the Tort Claims

Act.1


        1
           In City of Corpus Christi v. Eby, No. 13-09-205, 2011 WL 1437002 (Tex. App.—Corpus Christi,
Apr. 14, 2011, no pet.) (mem. op.), we reversed the denial of a motion to dismiss holding that the plaintiff did
not demonstrate a waiver of immunity. In Eby, all of the claims were for intentional torts, and thus Eby
failed to demonstrate a waiver of the City’s immunity from suit.
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      Some of our sister courts have addressed this issue and agree with the

propositions set forth by the appellee here. For example, in Amadi v. City of Houston,

the Fourteenth Court of Appeals addressed this precise issue. See Amadi, 369 S.W.3d

254 (Tex. App.—Houston [14th Dist.] 2011, pet. filed). As in this case, Amadi sued both

the City of Houston and its employee, alleging negligent operation of a motor vehicle. Id.

at 256. The City filed a plea to the jurisdiction alleging that Amadi's tort claims were

barred by section 101.106(b) of the Tort Claims Act because plaintiff included both the

employee and the City in her original petition. Id. In its plea, the City claimed that

Amadi was barred from suing or recovering. Id. Amadi countered that subsection (e),

not (b), applied. Id. at 259. That court concluded that section 101.106(b) operated “to

bar a plaintiff's recovery against the governmental unit when the plaintiff has elected to

sue only a government employee for the same subject matter.” Id. The Amadi Court

further determined:   “But this bar applies only when the governmental unit has not

consented to suit.”   Id.   The Amadi court further opined that the Tort Claims Act

expressly waives immunity when liability arises from a governmental employee's use of a

motor vehicle in the course and scope of employment. Id. The court held that Amadi's

claims were not barred because the City consented to suit for the tort claims at issue

there. Id.

      The Amadi Court noted, and we agree, that Mission Consolidated is

distinguishable. Id. at 260; see Mission Consolidated, 253 S.W.3d at 654. In Mission

Consolidated, the plaintiffs sued for violations of the Texas Commission on Human Rights

Act (“TCHRA”), and raised other common-law claims that did not fit within the purview of


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the Tort Claims Act's limited waiver of immunity. See Mission Consolidated, 253 S.W.3d

at 654. Here, as in Amadi, however, the claims, in fact, do fit within the limited waiver of

immunity. See Amadi, 369 S.W.3d at 262. The Amadi Court ultimately concluded that

the government explicitly consented to suit through the Tort Claims Act because liability

arose from the use of a motor driven vehicle or motor-driven equipment. Id.; see TEX.

CIV. PRAC. & REM. CODE ANN. § 101.021. Section 101.106(b), by its plain language, does

not bar suit because the government entity has consented to suit. We agree with the

Amadi court's reasoning.

       The Third Court of Appeals, in Barnum v. Ngakoue, reached a similar result. See

Nos. 03-09-00086-CV, 03-09-00087-CV, 2011 WL 1642179 (Tex. App.—Austin, Apr. 29,

2011, pet. granted). In Barnum, the appellate court concluded that the governmental

employer’s motion was properly denied. Id. at *11. The court stated: “This suit stems

from a car accident between Ngakoue and one of the Adjutant General’s employees, and

the legislature has expressly waived sovereign immunity in these circumstances. See

id. Thus under Mission Consolidated, the legislature has consented to suit in these

circumstances and the ‘forever’ bar under subsection 101.106(b) does not apply.” Id.

       Recently, in City of Houston v. Esparza, the First Court of Appeals reached a

similar result utilizing different reasoning. See 369 S.W.3d 238 (Tex. App.—Houston

[1st Dist.] 2011, pet. filed). In Esparza, the plaintiff sued both the City and its employee.

Id. at 242. The City asserted that section 101.106 requires a claimant to sue either the

City or employee and the claimant who sues both loses the opportunity to sue either.




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The City argued that “consent,” within the meaning of section 101.106(b), must be a

waiver of immunity independent of the Tort Claims Act. Id. at 245.

       Unlike Amadi, the Esparza Court interpreted section (b)'s consent exception to

permit “a claimant to bring a suit against a governmental unit only if the claimant has

complied with all of the authorizing statute's jurisdictional requirements for bringing suit.”

Id. at 249. The Esparza Court further noted that “for claims brought under the Tort

Claims Act, the claimant must meet all the Act's jurisdictional constraints.” Id. The

Esparza Court disagreed with Amadi and others to the extent that the limited waivers of

immunity alone establish a government's consent to suit. See id. at 251.

       The Esparza Court, following Mission Consolidated, determined that like the

TCHRA, the Tort Claims Act prescribes certain procedures that a claimant must comply

with in order to come within the Act's waiver of immunity. Id. The court ultimately

concluded that by operation of subsection (e), Esparza was forced to elect and chose to

pursue the claims against the City rather than the employee. As such, the claim against

the City was not barred as long as the other jurisdictional requisites are met. Id. at 253.

The Esparza Court, too, upheld the denial of the City's plea to the jurisdiction. Id. at 254;

see also Tex. Dep’t of Public Safety v. Deakyne, 371 S.W.3d 303, 311 (Tex. App.—San

Antonio 2012, pet. filed) (holding 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


                                              7
the non-elected defendant.”); Tex. Tech Univ. Health Sciences Ctr. v. Villagran, 369

S.W.3d 523, 531 (Tex. App.—Amarillo 2012, pet. filed)(holding that when suit is filed

against both governmental unit and employee, the governmental unit cannot use two

subsections in the election of remedies provision to require dismissal of the entire suit);

Tex. Parks & Wildlife Dept. v. Franklin, No. 09-12-00056-CV, 2012 WL 5289359 at *

2(Tex. App.—Beaumont, Oct. 25, 2012, no pet.) (mem.op) (agreeing with the San

Antonio Court’s holding in Deakyne); see also Tex. Dept. of Pub. Safety v Galvan,

No.13-11-00395 CV, 2013 WL 78546 at *4 (Tex. App.—Corpus Christi Feb. 28, 2013, no

pet.) (mem. op.) (following Deakyne).

       Here, because there was no challenge made to the jurisdictional prerequisites, we

do not decide the precise issue determined in Esparza. However, we do follow the

analyses discussed by the Houston, Austin, San Antonio, Amarillo, and Beaumont courts

to the extent applicable and hold that the trial court did not err in denying the plea to the

jurisdiction. We overrule the Department’s issue.

                                         IV. CONCLUSION

       We affirm the trial court's order denying the plea to the jurisdiction.



                                                  GREGORY T. PERKES
                                                  Justice

Delivered and filed the
21st day of March, 2013.




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