Metropolitan Transit Authority v. Emilia Roque Baltazar

Opinion issued

January 26, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00641-CV

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METROPOLITAN TRANSIT AUTHORITY OF

HARRIS COUNTY, TEXAS, Appellant

V.

EMILIA ROQUE BALTAZAR, Appellee

On Appeal from County

Civil Court at Law No. 4

Harris County, Texas

Trial

Court Case No. 958237

MEMORANDUM OPINION

Metropolitan Transit Authority of

Harris County (“Metro”) appeals the trial court’s interlocutory order denying

its plea to the jurisdiction. [1] In its sole issue, Metro 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]

We affirm.

Background

On March 17, 2010, Emilia Roque Baltazar sued Metro.

Baltazar alleged that, while a passenger on a

Metro bus, she suffered personal injuries when the bus came to a sudden stop,

and she fell. The bus was driven by Metro

employee, Michael Taylor. Baltazar asserted that Taylor, while acting in the course

and scope of his employment, negligently operated the bus, causing her

injuries. On February 17, 2011, Baltazar filed a first amended petition adding Taylor as a

defendant in addition to Metro. On March

24, 2011, Metro filed a motion to dismiss asserting,

Under §101.106(e) of the Texas Tort

Claims Act [] “[ i ]f a suit is filed under this

chapter against both a governmental unit and any of its employees, the employee

shall immediately be dismissed on the filing of a motion by the governmental

unit.” Accordingly, METRO files this motion seeking this Court to dismiss

Plaintiff’s claims against Defendant Michael A. Taylor, because it lacks

jurisdiction over those claims.

Three weeks

later, and before the trial court ruled on Metro’s dismissal motion, Baltazar filed his second amended petition, omitting Taylor

as a defendant. As she had done when she

originally filed suit, Baltazar named Metro as the

only defendant.

Shortly

thereafter, Metro filed a plea to the jurisdiction. It asserted that Baltazar’s

tort claims against it were barred by Tort Claims Act subsection 101.106(b)

because Baltazar had added Taylor as a defendant in her

first amended petition. Subsection (b)

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.” [3] In its plea, Metro asserted, “[ Baltazar ] filed this suit against METRO and subsequently

its employee, Taylor, regarding the same subject matter. At such time, as [ Baltazar ]

filed suit against Taylor, METRO’s governmental immunity from suit was

perfected as stated in l01.106( b).”

Baltazar responded to the plea by pointing to Tort Claims

Act subsection 101.106(a), which provides,

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. [4]

Citing

this provision, Baltazar asserted that when she

initially filed suit against Metro, she made an “irrevocable election” under

subsection 101.106(a), choosing Metro as her defendant, not Taylor. Because the election was irrevocable, Baltazar argued that her addition of Taylor in her first

amended petition had no effect; that is, Metro remained her elected defendant,

and subsection 101.106(b) did not apply.

The trial

court denied Metro’s plea to the jurisdiction.

Metro appeals the trial court’s order.

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. 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 (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, 927

(Tex. App.—Dallas 2007, pet. denied). The

issue presented in this appeal requires this Court to interpret section 101.106

of the Tort Claims Act. “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) (“In

interpreting a statute, a court shall diligently attempt to ascertain

legislative intent and shall consider at all times the old law, the evil, and

the remedy.”). “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).

Discussion

In its sole

issue, Metro argues that the trial court erred in denying its plea to the

jurisdiction because Baltazar triggered the

application of Tort Claims Act subsection 101.106(b) when she sued both Metro

and Taylor in her first amended petition. Metro asserts that subsection (b) grants it

immunity and bars any suit by Baltazar against Metro arising from her alleged fall on the bus.

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 . We interpret statutory waivers of immunity

narrowly, and the legislature’s intent to waive immunity must be clear and

unambiguous. Id . (citing Tex. Gov’t Code Ann . § 311.034).

The Torts Claim Act establishes a limited waiver of immunity and

authorizes suits to be brought against governmental units in certain

narrowly-defined circumstances and with certain restrictions. See Tex. Civ. Prac .

& Rem. Code Ann. §§ 101.001–009 (Vernon 2011); Tex. Dep’t of Criminal Justice v. Miller ,

51 S.W.3d 583, 587 (Tex. 2001). 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).

Metro 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 Baltazar . Nonetheless, Metro claims that, under the

procedural posture of this case, its immunity remains intact pursuant to

subsection Tort Claims Act 101.106(b). [5] Under that provision, Metro contends that Baltazar is forever barred from suing Metro for damages

arising from her fall on the bus because she added Taylor to her suit in her first

amended petition. As she did in the

trial court, Baltazar asserts that, under subsection

101.106(a), she elected to sue Metro when she filed suit and that election is

irrevocable. She implicitly concedes

that it was improper for her to add Taylor as a defendant in her first amended

petition.

Section 101.106, 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.

(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

(Vernon 2011) .

The Supreme Court of Texas has stated

that the legislature enacted the current version of section 101.106 “to force a

plaintiff to decide at the outset whether [a governmental] employee acted

independently and is thus solely liable, or acted within the general scope of

his or her employment such that the governmental unit is vicariously liable,

thereby reducing the resources that the government and its employees must use

in defending redundant litigation and alternative theories of recovery.” Garcia ,

253 S.W.3d at 657 .

“By requiring a plaintiff to make an irrevocable election at the time

suit is filed between suing the governmental unit under the Tort Claims Act or

proceeding against the employee alone, section 101.106 narrows the issues for

trial and reduces delay and duplicative litigation costs.” Id .;

see Alexander v. Walker , No. 01–10–00147–CV, 2011 WL 2500482, at

*4 (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet.)

( stating that “[t]he plain language of [sections

101.106(a) and (b)] suggests that the legislature intended for the plaintiff’s

election to occur when the plaintiff first files suit.”) .

Subsections

101.106(a) and (b) operate as mirror provisions of one another. See City of Houston v. Esparza , No. 01-11-00046-CV, 2011 WL 4925990, at *9

(Tex. App.—Houston [1st Dist.] October 7, 2011, no pet.

h.) (op. on reh’g ); see also Alexander , 2011 WL 2500482 , at *3 . When a claimant elects to sue a

governmental unit instead of its employee, subsection (a) immediately and

forever bars the claimant from bringing common law tort claims regarding that

subject matter against its employees. Esparza , 2011 WL 4925990, at * 9 (citing Kamel v. Univ. of Tex. Health Ctr ., 333

S.W.3d 676, 687 (Tex. App. — Houston [1st Dist.] 2010, pet. denied); Hintz v. Lally ,

305 S.W.3d 761, 771 (Tex. App. — Houston [14th Dist.] 2009, pet. denied); see Zimmerman v. Anaya , 2011 WL 1234685 ,

at *2–3 (Tex. App. — Houston [1st Dist.] Mar. 31, 2011, pet.

denied ) (holding that when claimant originally sued

governmental unit and later added employee as defendant, employee was entitled

to dismissal under subsection (a)). “Concordantly,

under . . . subsection (b), once a claimant elects to sue a government employee

instead of its governmental employer, subsection (b) immediately and forever

bars the claimant from bringing common law tort claims regarding that subject

matter against the employer.” [6] See Esparza , 2011 WL 4925990, at *9 (footnotes omitted); see also Alexander , 2011 WL 2500482 , at *3 .

We

agree with Baltazar that subsection (a) applies here,

not subsection (b). By originally filing

suit against Metro alone, Baltazar irrevocably elected

Metro as her chosen defendant, forever foregoing any common law tort claims

against Taylor arising from her fall on the bus. See Tex. Civ. Prac . & Rem. Code Ann. § 101.106(a);

s ee Esparza , 2011 WL

4925990, at *5 . Once suit is filed

against a governmental unit, a claimant is not permitted to change targets to

the employee. See Hintz , 305 S.W.3d at 769 (stating, “[O] nce

the plaintiff makes an ‘irrevocable election’ by suing only the employer, there

is no statutory mechanism to change targets and sue the employee instead.”). It was not appropriate for Baltazar to add Taylor as a defendant in her first amended

petition, and she properly non-suited him in her second amended petition. See id.

( likening effect of provisions of section 101.106 to a

“one-way door” that operates to remove employee from suit, while permitting

suit to be maintained against government employer and stating that such

interpretation “comports with the legislature’s goal to address efforts to

circumvent the Tort Claims Act’s limits by litigants who sued governmental

employees individually instead of their governmental employers”). It follows that subsection (b) has no

application to this case.

We conclude

that, w hen she initially

sued Metro, Baltazar satisfied the requisites of the election-of-remedies

provision by

irrevocably electing Metro as her defendant under subsection 101.106(a). [7] See Tex. Civ. Prac . & Rem. Code Ann.

§ 101.106(a); see also Esparza ,

2011 WL 4925990, at *10 .

We hold that, if she

has otherwise complied with the jurisdictional requisites of the Tort Claims

Act, Baltazar is not barred from pursuing her claims

against Metro, her elected defendant. [8] See id. The trial court properly denied Metro’s

plea to the jurisdiction.

We overrule

Metro’s sole issue.

Conclusion

We affirm the order of the trial court denying Metro’s plea

to the jurisdiction.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices

Higley and Brown.

[1] See

Tex. Civ. Prac .

& Rem. Code Ann. § 51.014(a )( 8) (Vernon

2008).

[2] See

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

(Vernon 2011) .

[3] Id.

[4] Id. § 101.106(a).

[5]

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).

Recently, 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, 960

S.W.2d at 623 ).

[6]

“ This election may be subject to the effect of subsection (f), where it

applies.” City

of Houston v. Esparza , No.

01-11-00046-CV, 2011 WL 4925990 , at *9 n.20 (Tex. App.—Houston [1st Dist.] October 7, 2011, no pet.

h.) (op. on reh’g ).

[7]

The briefing also raises the

question of whether subsection 101.106(e) applies. We stated in Esparza that the filing of suit against both the employee and the

governmental unit invokes subsection (e).

See id. at

*10 (citing Tex. Civ. Prac . & Rem. Code Ann . § 101.106(e)). Here, unlike in Esparza , the plaintiff, Baltazar ,

originally filed suit against only the governmental unit, Metro. Cf. id.

at *1 (involving suit filed against city and city

employee). Baltazar

did not initially file suit against the employee, Taylor. Even assuming subsection (e) was invoked when

Baltazar added Taylor as a defendant,

the result would be the same. By

operation of subsection (e), Baltazar’s filing of

suit against both defendants and Metro’s filing of the motion to dismiss Taylor

would result in a forced election of Metro as the defendant against whom Baltazar would seek recovery. See id.

at *10.

[8]

We note that Metro has not

challenged Baltazar’s compliance with the Tort Claims

Act jurisdictional requirements, other than the election-of-remedies provision. Baltazar’s claims

against Metro arise from an accident on a bus.

The Tort Claims 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).

However, exceptions apply to this waiver of immunity. See, e.g., Tex. Civ. Prac . &

Rem. Code Ann. § 101.055(2)

(Vernon 2011). In addition, the Tort

Claims Act has certain procedural

requirements with which a claimant must comply to obtain waiver of immunity to

sue a governmental unit. See, e.g ., Tex . Civ. Prac . & Rem. Code Ann. § 101.101 (Vernon

2011) (setting out pre-suit notice requirement).