The opinion
NUMBER 13-11-00789-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS PARKS AND
WILDLIFE DEPARTMENT, Appellant,
v.
ANA G. RUIZ, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, the Texas Parks and Wildlife Department ("the Department"), brings this
interlocutory appeal with respect to the trial court's order denying its motion to dismiss
pursuant to section 101.106(b) of the Texas Civil Practice and Remedies Code. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2011). By one issue, the
Department claims that the suit brought by Ana G. Ruiz, appellee, is barred by section
101.106(b) because she originally filed suit against both the governmental employee and
the governmental unit. We affirm.
I. BACKGROUND
Appellee brought suit against the Department and its employee, Kevin C.
McDonald, alleging that McDonald failed to yield the right-of-way, causing a collision and
personal injury to her. The Department moved to dismiss the case against McDonald
pursuant to section 101.106(e) of the Civil Practice and Remedies Code, which provides:
(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(e). Thereafter, appellee filed a notice of
non-suit with respect to her claim against McDonald. The court signed an order granting
the non-suit. On October 17, 2010, the Department filed a motion to dismiss pursuant to
section 101.106(b). That section 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 government unit consents.
Id. § 101.106(b). The trial court denied the motion to dismiss.
II. STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction to
hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v.
Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied). Whether a governmental entity is immune from suit is a question of
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subject-matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999). The existence of subject-matter jurisdiction is a question of law that we review de
novo. State Dep't of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.
2002); Kamel, 333 S.W.3d at 681. We may not presume the existence of subject-matter
jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993);
Kamel, 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not
consider the merits of the case, but only the plaintiff's pleadings and the evidence
pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002); Kamel, 333 S.W.3d at 681.
The resolution of this case requires statutory construction. We construe a statute
to give effect to legislative intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002);
Amadi v. City of Houston, 369 S.W.3d 254, 256 Tex. App.—Houston [14th Dist.] 2011,
pet. filed) (en banc). The statute should be read as a whole and be interpreted to give
effect to every part. Gonzalez, 82 S.W.3d at 327. The question before us is whether
the Department is entitled to dismissal pursuant to section 101.106(b) of the Texas Civil
Practice and Remedies Code because of its allegation that appellee made an irrevocable
election to sue both the employee and the governmental entity.
III. ANALYSIS
By way of background, the Texas Tort Claims Act provides a limited waiver of
immunity for certain suits against governmental units. TEX. CIV. PRAC. & REM. CODE ANN.
§§ 101.001–.109. (West 2011). With respect to the facts at issue here, the Tort Claims
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Act provides that immunity is waived to the extent that liability arises from the “use of a
motor-driven vehicle or motor-driven equipment” by an employee acting within the course
and scope of his employment or from “a condition or use of tangible personal or real
property.” Id. § 101.021.
The Department argues in its issue that its motion to dismiss should have been
granted because appellee sued both the governmental unit and its employee in the same
suit, and supreme court authority requires that a plaintiff must decide to sue either the
employee or the entity before filing suit. See Mission Consol. I.S.D. v. Garcia, 253
S.W.3d 653, 655 (Tex. 2008). The Department relies upon language in Mission
Consolidated that states, “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.” Id. at 659. The
Department urges that sections (b) and (e) apply without reference to one another when a
claimant sues both the government and its employee together, requiring both defendants
to be dismissed. Importantly, subsection 101.106(b) is qualified by a consent exception:
it bars suit against a governmental unit unless “the governmental unit consents.” Id. §
101.106(b).
Appellee argues that the claims against the governmental entity survive because
there is a waiver of immunity; the government consented to suit through the Tort Claims
Act.1
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In City of Corpus Christi v. Eby, No. 13-09-205, 2011 WL 1437002 (Tex. App.—Corpus Christi,
Apr. 14, 2011, no pet.) (mem. op.), we reversed the denial of a motion to dismiss holding that the plaintiff did
not demonstrate a waiver of immunity. In Eby, all of the claims were for intentional torts, and thus Eby
failed to demonstrate a waiver of the City’s immunity from suit.
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Some of our sister courts have addressed this issue and agree with the
propositions set forth by the appellee here. For example, in Amadi v. City of Houston,
the Fourteenth Court of Appeals addressed this precise issue. See Amadi, 369 S.W.3d
254 (Tex. App.—Houston [14th Dist.] 2011, pet. filed). As in this case, Amadi sued both
the City of Houston and its employee, alleging negligent operation of a motor vehicle. Id.
at 256. The City filed a plea to the jurisdiction alleging that Amadi's tort claims were
barred by section 101.106(b) of the Tort Claims Act because plaintiff included both the
employee and the City in her original petition. Id. In its plea, the City claimed that
Amadi was barred from suing or recovering. Id. Amadi countered that subsection (e),
not (b), applied. Id. at 259. That court concluded that section 101.106(b) operated “to
bar a plaintiff's recovery against the governmental unit when the plaintiff has elected to
sue only a government employee for the same subject matter.” Id. The Amadi Court
further determined: “But this bar applies only when the governmental unit has not
consented to suit.” Id. The Amadi court further opined that the Tort Claims Act
expressly waives immunity when liability arises from a governmental employee's use of a
motor vehicle in the course and scope of employment. Id. The court held that Amadi's
claims were not barred because the City consented to suit for the tort claims at issue
there. Id.
The Amadi Court noted, and we agree, that Mission Consolidated is
distinguishable. Id. at 260; see Mission Consolidated, 253 S.W.3d at 654. In Mission
Consolidated, the plaintiffs sued for violations of the Texas Commission on Human Rights
Act (“TCHRA”), and raised other common-law claims that did not fit within the purview of
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the Tort Claims Act's limited waiver of immunity. See Mission Consolidated, 253 S.W.3d
at 654. Here, as in Amadi, however, the claims, in fact, do fit within the limited waiver of
immunity. See Amadi, 369 S.W.3d at 262. The Amadi Court ultimately concluded that
the government explicitly consented to suit through the Tort Claims Act because liability
arose from the use of a motor driven vehicle or motor-driven equipment. Id.; see TEX.
CIV. PRAC. & REM. CODE ANN. § 101.021. Section 101.106(b), by its plain language, does
not bar suit because the government entity has consented to suit. We agree with the
Amadi court's reasoning.
The Third Court of Appeals, in Barnum v. Ngakoue, reached a similar result. See
Nos. 03-09-00086-CV, 03-09-00087-CV, 2011 WL 1642179 (Tex. App.—Austin, Apr. 29,
2011, pet. granted). In Barnum, the appellate court concluded that the governmental
employer’s motion was properly denied. Id. at *11. The court stated: “This suit stems
from a car accident between Ngakoue and one of the Adjutant General’s employees, and
the legislature has expressly waived sovereign immunity in these circumstances. See
id. Thus under Mission Consolidated, the legislature has consented to suit in these
circumstances and the ‘forever’ bar under subsection 101.106(b) does not apply.” Id.
Recently, in City of Houston v. Esparza, the First Court of Appeals reached a
similar result utilizing different reasoning. See 369 S.W.3d 238 (Tex. App.—Houston
[1st Dist.] 2011, pet. filed). In Esparza, the plaintiff sued both the City and its employee.
Id. at 242. The City asserted that section 101.106 requires a claimant to sue either the
City or employee and the claimant who sues both loses the opportunity to sue either.
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The City argued that “consent,” within the meaning of section 101.106(b), must be a
waiver of immunity independent of the Tort Claims Act. Id. at 245.
Unlike Amadi, the Esparza Court interpreted section (b)'s consent exception to
permit “a claimant to bring a suit against a governmental unit only if the claimant has
complied with all of the authorizing statute's jurisdictional requirements for bringing suit.”
Id. at 249. The Esparza Court further noted that “for claims brought under the Tort
Claims Act, the claimant must meet all the Act's jurisdictional constraints.” Id. The
Esparza Court disagreed with Amadi and others to the extent that the limited waivers of
immunity alone establish a government's consent to suit. See id. at 251.
The Esparza Court, following Mission Consolidated, determined that like the
TCHRA, the Tort Claims Act prescribes certain procedures that a claimant must comply
with in order to come within the Act's waiver of immunity. Id. The court ultimately
concluded that by operation of subsection (e), Esparza was forced to elect and chose to
pursue the claims against the City rather than the employee. As such, the claim against
the City was not barred as long as the other jurisdictional requisites are met. Id. at 253.
The Esparza Court, too, upheld the denial of the City's plea to the jurisdiction. Id. at 254;
see also Tex. Dep’t of Public Safety v. Deakyne, 371 S.W.3d 303, 311 (Tex. App.—San
Antonio 2012, pet. filed) (holding that “when a plaintiff sues both the governmental unit
and its employee, and the governmental unit moves to dismiss its employee under
section 101.106(e), the governmental unit becomes the elected defendant, the employee
becomes the non-elected defendant, and subsection (a) immunizes the employee from
suit or recovery; the governmental unit cannot then assert subsection (b)'s immunity for
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the non-elected defendant.”); Tex. Tech Univ. Health Sciences Ctr. v. Villagran, 369
S.W.3d 523, 531 (Tex. App.—Amarillo 2012, pet. filed)(holding that when suit is filed
against both governmental unit and employee, the governmental unit cannot use two
subsections in the election of remedies provision to require dismissal of the entire suit);
Tex. Parks & Wildlife Dept. v. Franklin, No. 09-12-00056-CV, 2012 WL 5289359 at *
2(Tex. App.—Beaumont, Oct. 25, 2012, no pet.) (mem.op) (agreeing with the San
Antonio Court’s holding in Deakyne); see also Tex. Dept. of Pub. Safety v Galvan,
No.13-11-00395 CV, 2013 WL 78546 at *4 (Tex. App.—Corpus Christi Feb. 28, 2013, no
pet.) (mem. op.) (following Deakyne).
Here, because there was no challenge made to the jurisdictional prerequisites, we
do not decide the precise issue determined in Esparza. However, we do follow the
analyses discussed by the Houston, Austin, San Antonio, Amarillo, and Beaumont courts
to the extent applicable and hold that the trial court did not err in denying the plea to the
jurisdiction. We overrule the Department’s issue.
IV. CONCLUSION
We affirm the trial court's order denying the plea to the jurisdiction.
GREGORY T. PERKES
Justice
Delivered and filed the
21st day of March, 2013.
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