Appellant’s Motion for Rehearing Overruled; Appellant’s Motion for En Banc
Reconsideration Denied as Moot; Opinion of July 12, 2011, Withdrawn; Affirmed
and Substitute Opinion on Rehearing filed November 3, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00136-CV


                           CITY OF HOUSTON, Appellant

                                           V.

                        ROSALABA RODRIGUEZ, Appellee


                       On Appeal from the 129th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2009-74882


    SUBSTITUTE OPINION ON REHEARING

      Appellant, the City of Houston (―the City‖), files this interlocutory appeal from the
trial court’s order denying the City’s plea to the jurisdiction. We issued our original
opinion on July 12, 2011. Thereafter, the City filed a motion for rehearing and a motion
for en banc reconsideration. We overrule the City’s motion for rehearing, withdraw our
previous opinion, and issue this substitute opinion affirming the trial court’s order. The
City’s motion for en banc reconsideration is denied as moot.
                                          I. BACKGROUND

        Appellee, Rosalaba Rodriguez, alleges she was injured when the vehicle in which
she was traveling was struck by a motor-driven vehicle operated by Leslie Carl Hudson,
an employee of the City. At the time of the accident, Hudson was operating his vehicle
within the course and scope of his employment. Rodriguez filed suit against Hudson and
the City simultaneously. The City filed a motion to dismiss Hudson from the suit
pursuant to section 101.106(e), which mandates dismissal in favor of a governmental
employee when suit is filed against both the employee and the governmental unit. Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011). The trial court granted the
motion. The City then filed a plea to the jurisdiction in which it requested dismissal of
Rodriguez’s suit. In its plea, the City referred to section 101.106(b), which provides that
the filing of a suit against a governmental employee forever bars suit against the
employee’s governmental unit regarding the same subject matter unless the governmental
unit consents. Id. § 101.106(b). The trial court denied the City’s motion, and the City
now brings this interlocutory appeal.1

            II. TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 101.106(b)

        In its sole issue, the City contends the trial court erred by denying its plea to the
jurisdiction because Rodriguez irrevocably elected to sue Hudson by suing both the City
and Hudson and, thus, suit against the City is barred under subsection (b).

A. Standard of Review

        Generally, we review a trial court’s order on a motion to dismiss under an abuse-
of-discretion standard. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied). However, the proper standard of review is determined by
        1
          We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas
Civil Practice and Remedies Code, which authorizes interlocutory appeals from denials of motions for
summary judgment based on section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5)
(West 2008). The fact that the City entitled its pleading ―plea to the jurisdiction‖ does not affect the
application of section 51.014(a)(5). See Phillps v. Dafonte, 187 S.W.3d 669, 674–75 (Tex. App.—
Houston [14th Dist.] 2006, no pet.), disapproved of on other grounds by Franka v. Velasquez, 332
S.W.3d 367 (Tex. 2011).

                                                    2
the substance of the issue rather than the type of motion considered by the trial court. See
In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (to determine proper standard of review, ―we
must determine whether the [issue] is a question of fact or of law‖). The City’s plea to
the jurisdiction presents an issue regarding statutory interpretation of section 101.106.

       Matters of statutory construction are reviewed de novo. City of San Antonio v.
Boerne, 111 S.W.3d 22, 25 (Tex. 2003). In construing a statute, our primary goal is to
determine and effectuate legislative intent. Grimes Cnty. Bail Bond Bd. v. Ellen, 267
S.W.3d 310, 316 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing In re
Canales, 52 S.W.3d 698, 702 (Tex. 2001) (orig. proceeding)). If a statute is clear and
unambiguous, we need not resort to rules of construction. Id. We may consider, among
other things, the statute’s objectives and the consequences of a particular construction.
Id.   We give effect to all the words of a statute, treating none of its language as
surplusage when reasonably possible. Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.
2009). We presume that every word of a statute has been included or excluded for a
reason. Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004).

B. Election-of-Remedies under the Texas Tort Claims Act

       The Texas Tort Claims Act (―TTCA‖) establishes a limited waiver of immunity
for certain suits against governmental units. Pertinent to our case, the TTCA waives
governmental immunity to the extent liability arises from the ―use of a motor-driven
vehicle or motor-driven equipment.‖ Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)
(West 2011). To prevent litigants from circumventing the TTCA by suing governmental
employees instead of governmental entities, the legislature provided the following
election-of-remedies provisions in section 101.106:

       (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

                                              3
      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.
      (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. ―Because the decision regarding whom to
sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit
and carefully consider whether to seek relief from the governmental unit or from the
employee individually.‖ Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
657 (Tex. 2008).

C. Analysis

      The City argues that Rodriguez’s petition naming both the City and Hudson
triggered application of subsections (b) and (e) and barred her suit against the City.
Essentially, the City contends that a plaintiff forfeits her claims when she files suit
simultaneously against both governmental employee and governmental unit because the
governmental unit may seek permanent dismissal of its employee pursuant to subsection
(e) and permanent dismissal of the claims against itself pursuant to subsection (b). In
support of this contention, the City cites Garcia, in which the supreme court concluded


                                            4
that subsection (b) applies even when suit is filed against both the employee and
governmental unit. Id. at 659–60. The court explained 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 [TTCA] waives immunity or those that allege common-law
claims.‖ Id. at 660 (emphasis added). Relying on this language, the City argues the trial
court was required to dismiss Rodriguez’s suit against it despite the fact that her claims
fall within the TTCA’s waiver of immunity. See Tex. Civ. Prac. & Rem. Code Ann. §
101.021(1) (providing waiver of immunity for liability arising from governmental
employee’s ―use of a motor-driven vehicle or motor-driven equipment‖). However, in
Amadi v. City of Houston, our en banc court recently rejected the identical argument. ---
S.W.3d ---, No. 14-10-01216-CV, 2011 WL 5099184 (Tex. App.—Houston [14th Dist.]
Oct. 27, 2011, no. pet. h.) (en banc op. on rehearing).

       In Amadi, the plaintiff sued the City and its employee simultaneously for injuries
stemming from the employee’s operation of a motor-driven vehicle within the course and
scope of his employment with the City. Id. at *1. We acknowledged the supreme court’s
broad language in Garcia that subsection (b) ―bars any suit . . ., not just suits for which
the [TTCA] waives immunity.‖          Id. at *5 (quoting Garcia, 253 S.W.3d at 659).
Nevertheless, we focused on the plain language of subsection (b), which mandates that a
suit against a governmental unit is barred regarding the same subject matter when a
plaintiff sues the governmental employee ―unless the governmental unit consents.‖ Id.
We would have ignored the ―unless the governmental unit consents‖ language if we
determined subsection (b) requires dismissal of the plaintiff’s claims against the City
even though they fall within TTCA’s waiver of immunity.            Id.    Accordingly, we
concluded that the plaintiff’s claims against the City were not barred under subsection (b)
because the City consented to the claims under the TTCA.            Id.   Furthermore, we
explained that our holding did not contradict the Garcia court’s conclusion that the
plaintiff’s common-law tort claims were barred under subsection (b) because immunity
for the specific common-law tort claims asserted in Garcia was not waived under the


                                             5
TTCA. Id. (citing Garcia, 253 S.W.3d at 650–60); see also City of N. Richland Hills v.
Friend, 337        S.W.3d         387,      392 (Tex.        App.—Fort           Worth        2011,       pet.
filed) (recognizing Garcia stands for proposition that subsection (b) bars all claims
against a governmental unit except claims for which immunity is waived, such as certain
tort claims under the TTCA).              Applying Amadi to the present case, we hold that
subsection (b) does not bar Rodriguez’s claims against the City because the City’s
immunity relative to the claims is waived under the TTCA. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.021(1).2

        We note that our holdings here and in Amadi potentially conflict with the holdings
in two cases cited by the City. See Huntsville v. Briggs, 262 SW3d 390 (Tex. App.—
Waco 2008, pet. denied); Tex. Dep’t of Agric. v. Calderon, 221 S.W.3d 918 (Tex. App.—
Corpus Christi 2007, no pet.), disapproved of on other grounds by Franka v. Velasquez,
332 S.W.3d 367 (Tex. 2011).3 In these cases, the plaintiffs sued governmental employees
for injuries stemming from the employees’ operation of motor-driven vehicles within the
scope of their government employment.                  Briggs, 262 SW3d at 391; Calderon, 221
S.W.3d at 920, 923 n. 3. The employees filed motions to dismiss pursuant to subsection
(f), which provides that on a governmental employee’s motion, suit against the employee
must be dismissed if the employee was sued for conduct committed within the scope of
his employment and the suit could have been brought under the TTCA against the
governmental unit; however, the plaintiff’s suit is not dismissed if he amends his
pleadings to dismiss the employee and name the governmental unit as defendant on or
        2
          The First Court of Appeals has recently addressed the identical issue presented in this case. See
City of Houston v. Esparza, --- S.W.3d ---, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—
Houston [1st Dist.] Oct. 7, 2011, no pet. h.). Although the First Court ultimately determined that
subsection (b) does not bar a plaintiff’s claims against a governmental unit when the plaintiff initially files
suit against both governmental unit and governmental employee, the court’s reasoning differs
substantially from that used by our court. Compare id. at *5–10, with Amadi, 2011 WL 5099184, at *6
(addressing differences in reasoning used by First Court and Fourteenth Court).
        3
          The City also cites the supreme court’s recent decision in Franka v. Velasquez. 332 S.W.3d 367
(Tex. 2011). However, the court focused its analysis on specific language of subsection (f) not relevant to
our case. Id. at 379–85. Further, the court’s discussion regarding Garcia does not support the City’s
position that subsection (b) operates to bar all claims, even those falling within the TTCA’s waiver of
immunity. See id. at 377–79.

                                                      6
before the thirtieth day after the date the motion is filed. Briggs, 262 SW3d at 391;
Calderon, 221 S.W.3d at 920; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).
The plaintiffs amended their petitions to add the governmental units as defendants but did
not dismiss the employees within thirty days of the date the motion was filed. Briggs,
262 SW3d at 392; Calderon, 221 S.W.3d at 920. The governmental units filed pleas to
the jurisdiction, arguing that the plaintiffs’ claims against them were barred because the
plaintiffs failed to comply with the procedures of subsection (f) and, thus, subsection (b)
applied; the trial courts denied the governmental units’ motions. Briggs, 262 SW3d at
391; Calderon, 221 S.W.3d at 920. Although the rationale employed by the courts of
appeals differed in certain respects, each held that the plaintiffs’ claims against the
governmental units must be dismissed because subsection (b) applied. Briggs, 262 SW3d
at 395–96; Calderon, 221 S.W.3d at 924. Neither court considered whether the phrase
―unless the governmental unit consents‖ in subsection (b) prevented dismissal because
immunity for the plaintiffs’ claims was waived under the section 101.021 of the TTCA.

         Though we make no comment regarding the relationship between subsections (b)
and (f), to the extent the Briggs and Calderon courts implicitly held that subsection (b)
bars claims for which a governmental unit’s immunity has been waived under section
101.021 of the TTCA, we disagree.4 In fact, the Austin Court of Appeals recently
disagreed with the Briggs and Calderon courts and held that subsection (b) did not bar
the plaintiff’s claims against the governmental unit—even though the plaintiff initially
sued only the governmental employee for injuries stemming from the employee’s
operation of a motor-driven vehicle—because the governmental unit’s immunity was
waived by the TTCA. See Barnum v. Ngakoue, Nos. 03-09-00086-CV, 03-09-00087-CV,
2011 WL 1642179, at *2, *7–12 (Tex. App.—Austin April 29, 2011, pet. filed) (mem.
op.).5


         As explained in Amadi, we disagree with the First Court of Appeals’s opinion in Esparza for the
         4

same reason. See Amadi, 2011 WL 5099184, at *6 (citing Esparza, 2011 WL 4925990, at *7).
         Interestingly, in dicta, the Barnum court interpreted the ―unless the governmental unit consents‖
         5

phrase of subsection (b) to mean that suit against a governmental unit is barred unless the governmental
                                                    7
       Accordingly, we overrule the City’s sole issue and affirm the trial court’s order
denying the City’s plea to the jurisdiction.




                                               /s/       Charles W. Seymore
                                                         Justice



Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.




unit presently consents to that particular suit. 2011 WL 1642179, at *10–11. In other words, the court
would interpret the phrase not to encompass prior waivers of immunity, such as those afforded in the
TTCA. Id. Nonetheless, the court recognized that it was bound by Garcia, in which the supreme court
interpreted the phrase to include prior waivers of immunity. Id. at *11.

                                                     8
