Election of Remedies Requirement does not bar TTCA suit against governmental unit

 
First Court of Appeals rejects City of Houston’s position, citing earlier precedent and opinions of other courts of appeals that have followed it.

 
City of Houston v. McMahon, No. 01-11-01037-CV (Tex.App.- Houston [1^st Dist.] Apr. 12, 2012, no pet. h.)

 
MEMORANDUM OPINION

The City of Houston (“the City”) 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.[2] 

In accordance with this Court’s opinion in City of Houston v. Esparza, we affirm the trial court’s order denying the City’s plea to the jurisdiction.  See No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).

Background Summary

Greta McMahon, Individually and as Next Friend of Kelsey McMahon, sued the City and its employee, Bradley Wyatt Nugent.  The petition alleges that Greta McMahon and Kelsey McMahon were riding in a car hit by a vehicle driven by Nugent, who was operating his vehicle in the scope of his employment with the City.  McMahon alleges that Nugent’s negligent and careless conduct caused the collision.  As a result of the collision, McMahon claims that she and Kelsey suffered personal injuries.

The City filed a motion to dismiss all of McMahon’s claims against Nugent.  In its motion, the City asserted, “Because plaintiff has sued both the Houston and its employee, Nugent, this Court must immediately dismiss Nugent on Houston’s motion[.]”  The City cited Tort Claims Act subsection 101.106(e), which 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 a governmental unit.” [3]  The City asserted, “The language of the statute requiring dismissal of the employee on the filing of a motion by the governmental unit is mandatory.”

The trial court granted the City’s motion, dismissing Nugent from the suit.

The same day the trial court signed the order dismissing Nugent, the City filed a plea to the jurisdiction.  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 consents.”[4]  The City asserted, “By filing suit against Nugent regarding the same subject matter, [McMahon] perfected [the City’s] section 101.106(b) immunity, defeating this Court’s subject-matter jurisdiction.”  In response, McMahon cited this Court’s opinion in Esparza in which we held that filing a suit against both the governmental unit and its employee invokes subsection (e) and results in an involuntary election of the governmental unit as the exclusive defendant, should the government or its employee choose to file a motion to dismiss on behalf of the employee.[5] 

The trial court denied the City’s plea to the jurisdiction.  The City now appeals the trial court’s order, raising one issue.

Standard of Review and Related Legal Principles

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, pet. denied). 

The issue presented in this appeal requires us to interpret Tort Claims Act section 101.106.  “The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent.”  Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).  In construing statutes, our primary objective is to give effect to the legislature’s intent as expressed in the language of the statute.  Galbraith Eng’g Consultants, 290 S.W.3d at 867; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005).  “Where text is clear, text is determinative of that intent.”  Entergy Gulf States, 282 S.W.3d at 437.  “This general rule applies unless enforcing the plain language of the statute as written would produce absurd results.”  Id.  We presume the legislature intended a just and reasonable result when it enacted the statute.  City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).  We read a statute as a whole, interpreting and giving effect to each of its parts.  See State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). 

Analysis

In its sole issue, the City asserts that the trial court erred in denying its plea to the jurisdiction because subsection 101.106(b) grants it immunity and bars any suit by McMahon against it arising from the automobile accident with Nugent.  McMahon responds that the City’s position is contrary to our holding in Esparza, 2011 WL 4925990, at *6.  We agree with McMahon. 

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 (Tex. 2008) (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 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 McMahon.  Nonetheless, the City claims that, under the procedural posture of this case, its immunity remains intact pursuant to Tort Claims Act section 101.106.[6]  That statute, entitled “Election of Remedies,” provides, in relevant part, 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.

                    . . . .

(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.

          . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2011).

In Esparza—a case with a similar factual and procedural background to this case—the City made the same argument it makes here: a plaintiff who sues both the governmental employee and the governmental unit cannot maintain suit against either.  See Esparza, 2011 WL 4925990 at *3.  More particularly, the City contends that if a plaintiff, such as McMahon, originally sues both a governmental unit and its employee then, on the governmental unit’s motion, the employee must be dismissed under subsection (e) and the plaintiff’s remaining suit against the governmental unit must be dismissed under subsection (b).  According to the City, the employee is dismissed under subsection (e) and the governmental unit is immune from suit under subsection (b). 

As pointed out by McMahon, we rejected the City’s argument in Esparza.  See id. at *4, 6.  We reasoned that requiring dismissal of the claims against the governmental unit when a plaintiff sues both the governmental unit and its employee would render subsection (e) “superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent.”  Id. at *6.  We held that the filing of a suit against both the governmental unit and its employee invokes subsection (e) and results in the plaintiff’s involuntary election of the governmental unit as her exclusive defendant, should the government or its employee choose to file a dismissal motion on behalf of the employee.  See id.  Under those circumstances, subsection (a) forever bars the claimant from pursuing her claims against the government employee, the non-elected defendant; but, subsection (b) does not simultaneously prohibit the claimant from pursuing her claims against the governmental unit, her elected defendant.  See id. at *5–6.  In sum, “[W]hile a claimant who erroneously fails to make an election has an election foisted upon her by operation of the statute, her inartful drafting does not, alone, bar her claims against both the employee and the employer.”  Id. at *6.  

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.[7]  See id. at *4, 6; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).  If she has otherwise complied with the jurisdictional requisites of the Tort Claims Act, McMahon is not barred by subsection (b) from pursuing her claims against the City, her elected defendant.[8]  See Esparza, 2011 WL 4925990, at *10.  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 trial court’s order denying the City’s plea to the jurisdiction.

                                                                      Laura Carter Higley

                                                                      Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2011).
[2]         See id. § 101.106(b) (Vernon 2011).  
[3]         See id. § 101.106(e).
[4]         Id. § 101.106(b).
[5]         City of Hous. v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).
[6]         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).  
[7]         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., 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 and Disability Servs. v. Johnson, No. 01–11–00526–CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (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 (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.  In Texas Tech University Health Sciences Center v. Villagran, the Amarillo Court of Appeals relied on Esparza in reaching the following holding: “[W]hen a claimant sues both the governmental unit and its employee together, the overall statutory scheme of section 101.106 requires that the trial court dismiss the employee upon the governmental unit’s motion, leaving the governmental unit to defend suits that otherwise comport with the Tort Claims Act’s jurisdictional constraints.”  No. 07–11–0257–CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no pet. h.).  The San Antonio Court of Appeals also adopted our holding in Esparza, commenting, “Esparza’s construction achieves the legislature’s goals: it reduces litigation costs by determining the elected defendant at the outset, protects government employees in the course and scope of employment by allowing them to be immediately dismissed, and gives the plaintiff’s election—whether by pleading or operation of statute—irrevocable consequences.”  Tex. Dept. of Public Safety v. Deakyne, No. 04–11–00271–CV, 2012 WL 726916, at *7 (Tex. App.—San Antonio Mar. 7, 2012, no pet. h.).
[8]         The City has not challenged McMahon’s compliance with the Tort Claims Act jurisdictional requirements, other than the election-of-remedies provision.  See Esparza, 2011 WL 4925990, at *10 n.22.