                                              OPINION
                                         No. 04-11-00380-CV

                        TEXAS PARKS AND WILDLIFE DEPARTMENT,
                                       Appellant

                                                  v.

                                      Teodora VILLARREAL,
                                             Appellee

                      From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-10-525
                             Honorable Jose Luis Garza, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 30, 2011

AFFIRMED

           This is an interlocutory appeal from the denial of Texas Parks and Wildlife Department’s

(“TPWD”) motion to dismiss Teodora Villarreal’s lawsuit pursuant to section 101.106(b) of the

Texas Civil Practices and Remedies Code. We affirm the trial court’s order.
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                                       BACKGROUND

        This case arises out of a car accident involving Villarreal and Don Hudson, an employee

of TPWD. Villarreal sued TPWD and Hudson, and in the opening paragraph of her petition

Villarreal stated:

        NOW COMES, Teodora Villarreal, Plaintiff herein, complaining of Defendants
        Texas Parks and Wildlife Department and Don C. Hudson, In His Official
        Capacity Only, and for such cause of action would respectfully show the Court
        and Jury as follows:

(emphasis in original). Each time Don C. Hudson is named in the original petition he is referred

to as “Don C. Hudson, In His Official Capacity Only.” In the prayer, Villarreal sought

judgment against TPWD only.

        On December 13, 2010, TPWD filed its original answer.          On December 22, 2010,

Hudson filed his original answer and a motion to dismiss pursuant to section 101.106 (a) & (e) of

the Texas Civil Practice and Remedies Code. The hearing on the motion was set for February 9,

2011, but before the hearing date and within fifteen days from the date the motion was filed,

Villarreal amended her petition and stated:

        NOW COMES, Teodora Villarreal, Plaintiff herein, complaining of Defendant
        Texas Parks and Wildlife Department, via Respondeat Superior, for the
        conduct of its Employee, Don C. Hudson….

In April 2011, TPWD filed a motion to dismiss pursuant to section 101.106(b) of the Texas Civil

Practice and Remedies Code. The trial court denied the motion.

                                         DISCUSSION

        The Texas Tort Claims Act provides a limited waiver of immunity. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021 (West 2011). The Act waives governmental immunity to the extent

that liability arises from the “operation or use of a motor-driven vehicle or motor-driven

equipment,” or from “a condition or use of tangible personal or real property.” Id. After the

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enactment of the TTCA, plaintiffs attempted to avoid the Act’s damage caps and other

requirements by suing government employees because claims against the employees individually

were not subject to the same limitations. Mission Consol. Indep. Sch. Distr. v. Garcia, 253

S.W.3d 653, 656 (Tex. 2008). To prevent these suits, the Legislature enacted an election-of-

remedies requirement, which provides:

       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 (amended

2003) (current version at TEX. CIV. PRAC. & REM. CODE § 101.106); see also Mission Consol.,

253 S.W.3d at 656. 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 the employees and the governmental unit

through trial or other final resolution. Id.

       In 2003, the Legislature enacted the current version of the election-of-remedies provision,

which states:

       (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 or recovery from any employee of the same
       governmental unit regarding the same subject matter.




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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 (West 2011).

       TPWD appears to assert that section 101.106 requires the dismissal of the governmental

unit pursuant to section 101.106 (b) & (e) of the Texas Civil Practice and Remedies Code

whenever the entity is sued along with an individual employee. TPWD argues Villarreal’s entire

suit is barred because she simultaneously filed suit against both the government employee and

the governmental entity. In its brief, TPWD contends that “the Supreme Court held that a

plaintiff must decide to sue either the governmental unit or the employee, but not both, and that

the irrevocable decision must be made before suit is filed.” Mission Consol., 253 S.W.3d 653,

656 (emphasis in TPWD brief). TPWD contends that under subsection (e), if a suit is filed

against the employee and the entity, the employee is dismissed upon the entity’s motion. TPWD

concludes that by suing both TPWD and Hudson, Villarreal made an irrevocable election, and

under subsection (b) the suit against the governmental entity must be dismissed.

       In construing a statute, our primary objective is to determine and give effect to the

Legislature’s intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also TEX. GOV’T

CODE ANN. § 312.005 (West 2005).          We first look to the plain language of the statute.

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Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865 (Tex. 1999). We may also

consider the object the Legislature sought to attain, the circumstances under which it enacted the

statute, legislative history, former statutory provisions, and the consequences of a particular

construction. See TEX. GOV’T CODE ANN. § 311.023(1)-(5) (West 2005). “We ‘read the statute

as a whole and interpret it to give effect to every part.’” Gonzalez, 82 S.W.3d at 327 (quoting

Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). This court presumes that the Legislature

intended for the entire statute to be effective. City of San Antonio v. City of Boerne, 111 S. W.3d

22, 25 (Tex. 2003). This court “may not adopt a construction that will render any part of the

statute inoperative, superfluous, or without legal effect.” Tex. Prop. & Cas. Ins. Guar. Ass’n v.

Johnson, 4 S.W.3d 328, 333 n.5 (Tex. App.—Austin 1999, pet. denied).

       We disagree with TPWD’s interpretation because it ignores the purpose of the election-

of-remedies provision as recognized by the Texas Supreme Court. In Mission Consol., the court

stated the “apparent purpose” of the revised election-of-remedies provision 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 the resources that the government and its employees must use in
       defending redundant litigation and alternative theories of recovery.

Mission Consol., 253 S.W.3d at 657. The court further explained that “by forcing plaintiffs to

make an irrevocable election at the time suit is filed, the Legislature intended to reduce the delay

and expense associated with allowing plaintiffs to plead alternatively that the governmental unit

is liable because its employee acted within the scope of his or her authority but, if not, that the

employee acted independently and is individually liable.” Id. (emphasis added).

       The court revisited section 101.106 of the Texas Civil Practice and Remedies Code in

Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In Franka, the court construed subsection (f)



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of section 101.106, which addresses situations where the plaintiff sues only the government

employee based on conduct within the employee’s general scope of employment. The court

stated:

          Properly construed, section 101.106(f)’s two conditions are met in almost every
          negligence suit against a government employee: he acted within the general scope
          of his employment and suit could have been brought under the Act—that is, his
          claim is in tort and not under another statute that independently waives immunity.
          In such cases, the suit “is considered to be against the employee in the employee’s
          official capacity only”, and the plaintiff must promptly dismiss the employee and
          sue the government instead. No party is forced into awkward or conflicting
          positions. The immunity issue need not be determined until the governmental unit
          is in the suit and the issue can be fully addressed.

Id. at 381.

          In both Franka and Mission Consol., the supreme court acknowledged that section

101.106 recognizes the difference between a suit against the employee in his official capacity

and one in his individual capacity. Id. at 381; Garcia, 253 S.W.3d at 656. This becomes even

clearer in the supreme court’s decision in University of Texas Health Science Center at San

Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011).            In Bailey, the supreme court addressed

subsection (f) of section 101.106. Id. at 401. Although subsection (f) is not directly relevant to

this case, the court’s interpretation of subsection (f) in Bailey demonstrates the effect of suing an

employee in their official capacity. Id.

          In Bailey, the plaintiffs sued Dr. Sanders on a health care liability claim without

specifying whether they sued him in his official capacity or individually. Id. at 397. The Baileys

did not initially sue Dr. Sanders’s employer, the University of Texas Health Science Center at

San Antonio (“Center”). Id. After the statute of limitations ran, Dr. Sanders filed a motion

under section 101.106(f) to have the Center substituted for him. Id.




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       The supreme court first recognized that “[s]ection 101.106(f) of the Texas Tort Claims

Act allows a plaintiff who has sued a government employee in what is considered to be his

official capacity to avoid dismissal of the action by substituting the governmental employer as a

defendant.” Id. at 396. The issue for the court was whether action against the substituted

defendant is barred after limitations has run. Id. The supreme court held that under subsection

101.106(f) when a government employee is sued for conduct within the general scope of

employment, as Dr. Sanders was, and the employer could have been sued under the TTCA, the

suit is considered to be against the employee in his official capacity only. The court noted:

       So while the Baileys may have intended to sue Sanders in his individual capacity,
       as the court of appeals concluded they did, section 101.106(f) did not allow them
       that choice. Under the statute, it matters not that the Baileys may not have been
       aware of Sanders’ government employment when they sued him; only the fact of
       his employment, eventually established, is important. Substitution of the Center as
       the defendant was not automatic; Sanders was required to file a motion. But the
       statute does not require a motion for a government employee to be considered to
       have been sued in his official capacity.

Id. at 401 (Tex. 2011). The supreme court further explained:

       It is fundamental that a suit against a state official is merely “another way of
       pleading an action against the entity of which [the official] is an agent.” A suit
       against a state official in his official capacity “is not a suit against the official
       personally, for the real party in interest is the entity.” Such a suit actually seeks to
       impose liability against the governmental unit rather than on the individual
       specifically named and “is, in all respects other than name, . . . a suit against the
       entity.


Id. at 401 (quoting Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)). The

court held the Baileys’ suit against Sanders for acts occurring within the scope of his duties for

the Center “was, in all respects other than name, a suit against the Center.” Id. Therefore, the

Baileys had the right to proceed against the Center.




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       From the onset, Villarreal’s suit was against TPWD because it was a suit against TPWD

and Hudson in his official capacity only. As demonstrated by the supreme court’s analysis in

Bailey, suit against a government employee in his official capacity is not a suit against the

employee individually for personal liability. See id. Villarreal named Hudson as a defendant in

his official capacity only; she did not plead alternatively that Hudson acted independently and is

individually liable. Because Villarreal only sued Hudson in his official capacity, she made her

irrevocable election to sue TPWD. Accordingly, the trial court did not err by denying TPWD’s

motion to dismiss.



                                                     Steven C. Hilbig, Justice




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