                                            In The

                                     Court of Appeals
                         Ninth District of Texas at Beaumont
                                  _________________
                                    NO. 09-12-00056-CV
                                  _________________

              TEXAS PARKS AND WILDLIFE DEPARTMENT, Appellant

                                              V.

                               JAMES FRANKLIN, Appellee

________________________________________________________________________

                    On Appeal from the 1A District Court
                           Jasper County, Texas
                           Trial Cause No. 31178
________________________________________________________________________

                                MEMORANDUM OPINION

           In this interlocutory appeal, the Texas Parks and Wildlife Department argues that

the election of remedies provision of the Texas Tort Claims Act bars James Franklin’s

suit.1 See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b), (e) (West 2011). 2 We


       1
         A trial court’s denial of a motion to dismiss raising an election of remedies issue
under section 101.106 of the Texas Tort Claims Act can be appealed under the provisions
of section 51.014 of the Texas Civil Practice and Remedies Code. See Singleton v.
Casteel, 267 S.W.3d 547, 549-50 (Tex. App.—Houston [14th Dist.] 2008, pet. denied);
see also Tex. Civ. Prac. & Rem. Code Ann.§ 51.014 (West Supp. 2012), § 101.106 (West
2011).
       2
         Subsections 101.106(b) and 101.106(e) provide, in pertinent part, that:
                                               1
conclude that Franklin could pursue his claim against the Department; therefore, the trial

court did not err in denying the Department’s motion to dismiss. We affirm the trial

court’s order.

       Franklin filed suit after a truck driven by the Department’s employee, Joshua

Hollis, turned in front of Franklin’s vehicle. Initially, Franklin sued both the Department

and Hollis. In his original petition, Franklin alleged that Hollis was negligent and that,

when the collision occurred, Hollis was acting in the course and scope of his employment

with the Department.

       In response to Franklin’s original petition, the Department filed a motion asking

the trial court to dismiss Hollis from the suit based on the election of remedies provision,

section 101.106(e) of the Texas Civil Practice and Remedies Code. See id. § 101.106(e).

Before the trial court ruled on the motion, Franklin filed an amended petition, naming the

Department as the sole defendant. Subsequently, based on section 101.106(b), the



       (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.

       ....

       (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(b), (e).
                                             2
Department filed a supplemental motion, asking that the trial court dismiss Franklin’s suit

against the Department. See id. § 101.106(b). In its supplemental motion, the Department

argued that by initially filing suit against both it and Hollis, Franklin had irrevocably

elected his remedy under section 101.106(b), barring Franklin’s suit against it.

       In response to the Department’s supplemental motion to dismiss, Franklin argued

that the Department had consented to being sued in cases involving injuries arising from

automobile accidents, that section 101.106(b) did not bar his suit, and that he had

removed Hollis from the suit based on the Department’s motion stating that Hollis was its

employee when the accident occurred. See id. §§ 101.021, 101.101 (West 2011). The trial

court denied the Department’s supplemental motion to dismiss.

       In its appeal, the Department argues that because Franklin initially sued Hollis,

section 101.106(b) mandates that a plaintiff’s suit against a governmental unit employer

be dismissed. According to the Department, a plaintiff cannot sue the governmental unit’s

employee without losing his right to maintain suit against the governmental unit that

employed him. To support its argument, the Department relies on Mission Consol. Indep.

Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008).

       We disagree that the provisions of section 101.106 constitute an election to sue

only the employee when the suit is, at first, initiated against both the governmental unit

and its employee. When the employee and the governmental unit are initially joined in a

suit due to the employee’s having acted in the course and scope of his employment, the


                                             3
statute appears to be intended to cause the governmental unit to become the sole

defendant.

       Recently, the San Antonio Court of Appeals, under facts and arguments similar to

these, concluded that sections 101.106(b) and (e) “cannot reasonably be read to mean that

if a plaintiff sues both a governmental unit and its employee, subsections (e) and (b)

ensure the plaintiff cannot maintain a suit against either one.” Tex. Dep’t of Pub. Safety v.

Deakyne, 371 S.W.3d 303, 310 (Tex. App.—San Antonio 2012, pet. filed). We agree

with the reasoning of the San Antonio Court in Deakyne. After explaining how the

various parts of section 101.106 were intended to operate, the Deakyne court stated 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 . . .

the governmental unit cannot then assert subsection (b)’s immunity for the non-elected

defendant.” Id. at 310-11.

       We likewise conclude that the various provisions of section 101.106 were not

intended to operate as a trap; we hold that section 101.106(b) does not require a

governmental unit’s dismissal under the circumstances that are presented here. In Garcia,

the Texas Supreme Court did not hold that the election of remedies provision barred

claims where the State had waived its right to sovereign immunity; in light of the




                                             4
differences in the procedural histories between Garcia and this case, Garcia is not

controlling. See 253 S.W.3d at 654. We overrule the Department’s sole issue.

       We hold that the trial court properly denied the Department’s motion to dismiss

under section 101.106(b) of the Texas Tort Claims Act. Accordingly, we affirm the trial

court’s order.

       AFFIRMED.



                                               ___________________________
                                                      HOLLIS HORTON
                                                            Justice


Submitted on August 2, 2012
Opinion Delivered October 25, 2012
Before McKeithen, C.J., Gaultney and Horton, JJ.




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