Motion for Rehearing Overruled; Opinion filed July 28, 2011, Withdrawn;
Affirmed and Substitute Memorandum Opinion on Rehearing filed November 17,
2011.




                                              In The

                        Fourteenth Court of Appeals

                                     NO. 14-11-00220-CV

                              CITY OF HOUSTON, Appellant

                                                V.

                               KELVIN JOHNSON, Appellee

                         On Appeal from the 129th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2010-43403



   S U B S T I T U T E M E M O R A N D U M O P I N I O N ON REHEARING

       We overrule the motion for rehearing, withdraw our opinion dated July 28, 2011,
and issue the following substitute opinion. In this interlocutory appeal, the City of
Houston appeals from the trial court’s order denying its plea to the jurisdiction on the
negligence claims of appellee Kelvin Johnson.1 We affirm.


       1
          See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (permitting interlocutory
appeals from a court order that grants or denies a plea to the jurisdiction by a governmental unit).
                                       BACKGROUND

       Johnson simultaneously sued the City and its employee, Marcia Renee
Washington, for negligence alleging that the vehicle driven by Washington struck the
vehicle in which Johnson was travelling. The City filed a motion to dismiss the claims
against its employee, Washington, pursuant to the election-of-remedies provision of the
Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e)
(West 2011). Johnson then filed a notice of non-suit of his cause of action against
Washington without prejudice. The trial court ordered that Johnson’s cause of action
against Washington be non-suited without prejudice. The trial court also subsequently
granted the motion to dismiss the claims against Washington. The City then filed a plea
to the jurisdiction, contending that Johnson’s claims against it should be dismissed
pursuant to section 101.106(b) of 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) (per curiam); Miranda, 133 S.W.3d at 228.

                                          ANALYSIS

       In its sole issue in this appeal, the City asserts that the trial court erred by denying
its plea to the jurisdiction. Specifically, the City argues that it is entitled to the dismissal
of Johnson’s claims against it pursuant to section 101.106(b) because Johnson made an
irrevocable election to sue its employee, thus barring all claims against the City.
                                             2
       Section 101.106(e) 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 ANN. § 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 employees from the suit.
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005,
pet. denied). Here, the trial court first granted the non-suit dismissing the claims against
Washington from the suit.       However, the procedure by which the claims against
Washington were dismissed from the suit is of no consequence to our disposition. See
Amadi v. City of Houston, No. 14-10-01216-CV, — S.W.3d —, 2011 WL 5099184, at *4
(Tex. App.—Houston [14th Dist.] October 27, 2011, no pet. h.) (op. on reh’g en banc)
(explaining that the only claims remaining in the case were those against the City for
which it consented to be sued regardless of the procedure used to dismiss the employee
from the suit).

       With the claims against Washington dismissed from the suit, the City further
sought the dismissal of Johnson’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 ANN. § 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

                                             3
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, 2011 WL 5099184, at *8; 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, no pet. h.) (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 ANN.
§ 101.021 (West 2011) (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. Moreover, Garcia is distinguishable because, unlike in this case, the
governmental unit had not waived its immunity to suit for the plaintiffs’ tort claims. See
Amadi, 2011 WL 5099184, at *5.

       Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against the City and Washington does not bar Johnson’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.

                                           /s/  Sharon McCally, Justice
Panel consists of Justices Frost, Jamison, and McCally.

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