Opinion issued June 21, 2012




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-12-00190-CV
                         ———————————
                   THE CITY OF HOUSTON, Appellant
                                   V.
                       KELVIN ATKINS, Appellee




                  On Appeal from the 61st District Court
                          Harris County, Texas
                    Trial Court Case No. 2011-75339
                            MEMORANDUM OPINION

      The City of Houston appeals the trial court’s interlocutory order denying its

plea to the jurisdiction.1 In its sole issue, the City contends that the trial court erred

in denying its plea because it has immunity pursuant to subsection (b) of the

election-of-remedies provision of the Texas Tort Claims Act.

      We affirm.

                               Background Summary

      Kelvin Atkins sued the City of Houston (“the City”) and its employee,

Wayne Douglas Collins. Atkins alleged that he suffered personal injuries in a

motor vehicle accident involving Collins. Atkins alleged that the accident was

caused by Collins’ negligent operation of the motor vehicle Collins was driving.

Atkins asserted that, at the time of the accident, Collins was acting within the

course and scope of his employment with the City.

      The City filed a plea to the jurisdiction seeking dismissal of Atkins’s claims

against it. In its plea, the City cited Tort Claims Act subsection 101.106(b), which

provides that the “filing of a suit against any employee of a governmental unit . . .

immediately and forever bars any suit or recovery by the plaintiff against the

governmental unit regarding the same subject matter unless the governmental unit




1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2011).
                                            2
consents.”2 The City asserted, “By filing suit against Collins regarding the same

subject matter, plaintiff perfected [the City’s] section 101.106(b) immunity,

defeating this Court’s subject-matter jurisdiction.”

      A few days after the City filed its plea, Atkins non-suited his claims against

the City’s employee, Collins. Atkins amended his petition to name the City as the

only defendant.

      The trial court denied the City’s plea to the jurisdiction. The City now

appeals the trial court’s order. In its sole issue, the City asserts that the trial court

erred in denying its plea to the jurisdiction because Tort Claims Act subsection

101.106(b) grants it immunity and bars any suit by Atkins against it arising from

the automobile accident with Collins.

                                 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. See Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999). We review de novo a trial

court’s ruling on a jurisdictional plea.        Miranda, 133 S.W.3d at 226; see

Kalyanaram v. Univ. of Tex. Sys., 230 S.W .3d 921, 925 (Tex. App.—Dallas 2007,


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


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pet. denied). We also review a trial court’s interpretation of a statute de novo. See

Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).

                                     Analysis

      Sovereign and governmental immunity exist to protect the State and its

political subdivisions from lawsuits and liability for money damages because such

lawsuits hamper governmental functions by interfering with the appropriate use of

tax resources. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

655 (Tex. 2008). Even so, the State, and likewise its political subdivisions, may be

sued when the legislature has statutorily waived immunity. See id.

      The Torts Claim Act establishes a limited waiver of immunity and

authorizes suits to be brought against governmental units in certain defined

circumstances and with certain restrictions. See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 101.001–.109 (Vernon 2011 & Vernon Supp. 2011); Tex. Dep’t of

Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). With respect to a

statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver

narrowly, because the legislature’s intent to waive immunity must be clear and

unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX.

GOV’T CODE ANN. § 311.034 (Vernon 2005)). Relevant to this case, the Act

waives governmental immunity to the extent that liability arises from the “use of a




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motor-driven vehicle or motor-driven equipment.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(1)(A) (Vernon 2011).

      The City does not presently dispute that section 101.021 generally waives its

immunity for personal injury claims arising from an accident involving the use of a

motor vehicle, such as that asserted by Collins. Nonetheless, the City claims that,

under the procedural posture of this case, its immunity remains intact pursuant to

Tort Claims Act section 101.106.3

      Section 101.106, entitled “Election of Remedies,” provides as follows:

      (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.



3
      The Supreme Court of Texas has stated that that “section 101.106 is an immunity
      statute.” Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997). The supreme
      court reiterated this position in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).
      There, the court, citing Newman, stated that section 101.106 is a statute which
      confers immunity. Id. at 371 n.9 (citing Newman, 960 S.W.2d at 623).
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      (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.

      The City argues that a plaintiff who sues both the governmental employee

and the governmental unit cannot maintain suit against either. The City contends

that if a plaintiff, such as Atkins, originally files suit against both a governmental

unit and its employee, on the governmental unit’s motion, the plaintiff’s claims

against the governmental unit must be dismissed under subsection (b), which

grants it immunity from suit. And, on the filing of the City’s motion, the employee

is also entitled to dismissal under subsection (e). Based on this interpretation, the

City asserts that, in this case, it was entitled to immunity and dismissal under

subsection (b).




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      We have previously decided the question of statutory interpretation

presented in this case: whether subsection 101.106(b) grants a governmental unit,

such as the City, immunity from suit when the plaintiff initially sues both the

governmental unit and its employee for tort claims. In City of Houston v. Esparza,

we determined that subsection (b) does not grant the City immunity from suit—

thus requiring its dismissal—when the plaintiff sues both the City and its employee

in the original petition. No. 01–11–00046–CV, 2011 WL 4925990, at *10 (Tex.

App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g). Giving effect to

the legislature’s plain language and reading section 101.106’s provisions in

harmony, we explained that a plaintiff’s initial filing of suit against the City and its

employee invoked subsection (e), not subsection (b). See id. Such filing results in

the plaintiff’s involuntary election of the governmental unit as his exclusive

defendant, should the government, as in Esparza, choose to file a dismissal motion

on behalf of the employee. See id. We held that subsection (b) did not bar the

plaintiff’s claims against the City, and we affirmed the trial court’s denial of the

City’s dismissal motion.4 See id.

      In sum, subsection (b) has no application when a plaintiff simultaneously

sues the governmental unit and its employee, and the plaintiff elects the unit as its

4
      This interpretation is in accord with language in Mission Consolidated
      Independent School District v. Garcia in which the Supreme Court of Texas
      recognized that a governmental unit may be sued when the suit is filed against it
      and its employee. 253 S.W.3d 653, 657 (Tex. 2008).
                                           7
chosen defendant. This is true regardless of whether the plaintiff’s claims are

dismissed by way of a governmental unit’s motion, as in Esparza, or, as in this

case, by non-suit of the employee.5 See id. Following our precedent in Esparza,

we conclude that subsection (b) does not provide immunity when a claimant sues

both a governmental unit and its employee. See id. at *4, 6. If he has otherwise

complied with the jurisdictional requisites of the Tort Claims Act, Atkins is not

barred by subsection (b) from pursuing his claims against the City. See id.



5
      The City is critical of our opinion in Esparza. Since its issuance, we have relied
      on and reaffirmed the reasoning of Esparza in a number of opinions. See, e.g.,
      City of Hous. v. Vallejo, No. 01–11–00133–CV, 2012 WL 1881726, at *5 (Tex.
      App.—Houston [1st Dist.] May 22, 2012, no pet. h.); City of Hous. v. McMahon,
      No. 01–11–01037–CV, 2012 WL 1249567, at *4 (Tex. App.—Houston [1st Dist.]
      Apr. 12, 2012, not pet. h.) (mem. op.); Metro. Transit Auth. v. Light, No. 01–11–
      00747–CV, 2012 WL 252187, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 26,
      2012, no pet.) (mem. op.); City of Hous. v. Tsaig, No. 01–11–00432–CV, 2012
      WL 170606, at *3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, (no pet.) (mem.
      op.); Tex. Dept. of Aging & Disability Servs. v. Johnson, No. 01–11–00526–CV,
      2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, pet. filed)
      (mem. op.); City of Hous. v. Marquez, No. 01–11–00493–CV, 2011 WL 6147772,
      at *3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.); City of
      Hous. v. McClain, No. 01–11–00194–CV, 2011 WL 6015697, at *2–3 (Tex.
      App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.); City of Hous. v.
      San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—
      Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.). Here, we again reaffirm
      Esparza and apply its holding.

      We also note that two of our sister courts have relied on our reasoning in Esparza
      to reject the same argument made by the City in this case. See, e.g., Tex. Tech
      Univ. Health Scis. Ctr. v. Villagran, No. 07–11–0257–CV, 2012 WL 967366, at
      *7 (Tex. App.—Amarillo Mar. 22, 2012, no pet. h.); Tex. Dept. of Pub. Safety v.
      Deakyne, No. 04–11–00271–CV, 2012 WL 726916, at *7 (Tex. App.—San
      Antonio Mar. 7, 2012, no pet. h.)

                                          8
      We hold that the trial court properly denied the City’s plea to the

jurisdiction. We overrule the City’s sole issue.

                                    Conclusion

      We affirm the order of the trial court denying the City’s plea to the

jurisdiction.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Higley, Sharp, and Huddle.




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