Affirmed and Memorandum Opinion filed February 2, 2012




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-11-00391-CV


                       THE CITY OF HOUSTON, Appellant

                                         V.

                         GREGORY SAUCEDA, Appellee


                      On Appeal from the 151st District Court
                              Harris County, Texas
                        Trial Court Cause No. 2010-50857


                 MEMORANDUM                       OPINION


      In this interlocutory appeal, the City of Houston appeals from the trial court’s
order denying its plea to the jurisdiction on the personal injury claims of appellee,
Gregory Sauceda. We affirm.

                                      BACKGROUND

      Sauceda simultaneously sued the City and its employee, John Doe, who was
driving a city-owned vehicle, for negligence in causing a collision with a vehicle
occupied by Sauceda resulting in personal injury to him. The City filed a motion to
dismiss its employee, Doe, pursuant to the election-of-remedies provision of the Texas
Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.106(e). The trial
court granted the motion and dismissed all of Sauceda’s claims against Doe under section
101.106(e). The City then filed a plea to the jurisdiction, contending that Sauceda’s
claims against it should be dismissed pursuant to section 101.106(b), the election-of-
remedies provision. See id. § 101.106(b). The trial court denied the City’s plea to the
jurisdiction and this appeal followed.

                                      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.) (citing
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 (Tex. 1999)). We review the trial court’s
ruling on a plea to the jurisdiction under a de novo standard. City of Dallas v. Carbjal,
324 S.W.3d 537, 538 (Tex. 2010); Miranda, 133 S.W.3d at 228.

                                              ANALYSIS

       In its sole issue in this appeal, the City asserts that the trial court erred in denying
its plea to the jurisdiction. Specifically, the City argues that it is entitled to the dismissal
of Sauceda’s claims against it pursuant to section 101.106(b).

       Section 101.106(e) — the provision under which the City moved to dismiss Doe
from this case — 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 § 101.106(e). Once the governmental unit files a motion to
dismiss the claims against its employee under section 101.106(e), the trial court must
grant the motion and dismiss the claims against the employee from the suit. Waxahachie
I.S.D. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005, pet. denied).

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       After the trial court granted the motion to dismiss the claims against the employee,
the City further sought the dismissal of Sauceda’s claims against itself 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.
Tex. Civ. Prac. & Rem. Code § 101.106(b).

       The City argues that the governmental unit has immunity from suit under
subsection (b) when a plaintiff files suit simultaneously against the governmental unit and
its employee regarding the same subject matter. Specifically, the City relies on Mission
Consolidated Independent School District v. Garcia, which states that ―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.‖ 253 S.W.3d 653, 659 (Tex. 2008). However, this court
recently rejected these identical arguments in cases involving the simultaneous filing of
suit against the City and its employee. See Amadi v. City of Houston, No. 14-10-01216-
CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th Dist.] Oct. 27,
2011, pet. filed) (op. on reh’g en banc); see also City of Houston v. Rodriguez, No. 14-11-
00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston [14th Dist.]
Nov. 3, 2011, pet. filed) (op. on reh’g).

       Subsection (b) applies to bar a plaintiff’s recovery against the governmental unit
only when the governmental unit has not consented to suit. Amadi, 2011 WL 5099184, at
*4. Here, as in Amadi and Rodriguez, the City consented to suit based on the negligent
use or operation of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021
(providing for a waiver of immunity for property damage and personal injuries resulting
from the negligent operation or use of a motor-driven vehicle or motor-driven
equipment); see also Rodriguez, 2011 WL 5244366, at *3; Amadi, 2011 WL 5099184, at
*4.

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       Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against the City and Doe does not bar Sauceda’s suit against the City because the
City has consented to suit in this case. See Amadi, 2011 WL 5099184, at *8; see also
Rodriguez, 2011 WL 5244366, at *3 (applying Amadi and holding that subsection (b) did
not bar the plaintiff’s claims against the City because the City’s immunity relative to the
claims was waived under the TTCA). Because the City was not entitled to dismissal
pursuant to section 101.106(b), we overrule its sole issue.

       Accordingly, we affirm the trial court’s judgment.




                                                 PER CURIAM


Panel consists of Justice Frost, Brown, and Christopher.




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