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City of Houston v. John McClain and Carita Douvio
(Tex.App- Houston [1st Dist.] Dec. 1, 2011, no pet. h.)
MEMORANDUM OPINION
After a car accident, John McClain[1] sued the City of Houston and its employee, Larry Horton, alleging negligence on the part of Horton as the cause of the accident. The trial court granted the City’s motion to dismiss Horton under the Texas Tort Claims Act’s election-of-remedies provision. The City then filed a plea to the jurisdiction, claiming that McClain’s filing suit against Horton perfected the City’s statutory immunity from suit. The trial court denied the City’s plea to the jurisdiction, and the City brought this interlocutory appeal.[2] We conclude that the trial court properly denied the City’s plea to the jurisdiction. We affirm.
Background
McClain sued the City and its employee, Horton, alleging that Horton negligently operated a motor vehicle, causing a collision involving McClain. The City moved to dismiss McClain’s claims against Horton under section 101.106(e) of the Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (West 2011). That provision states:
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.
Id. The trial court granted the City’s motion to dismiss Horton from the suit. The City later filed a plea to the jurisdiction, asserting that section 101.106(b) of the Act bars McClain’s claims against the City. That provision states:
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.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2011). The trial court denied the City’s plea to the jurisdiction. In its single issue, the City contends that the trial court erred in denying its plea to the jurisdiction. Specifically, the City asserts that because McClain filed suit against the City and Horton, McClain perfected the City’s section 101.106(b) immunity and McClain is forever barred from pursuing his claims against the City.
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 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. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681.
Section 101.106 of the Texas Tort Claims Act
A. The Parties’ Contentions
Citing Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653 (Tex. 2008) and Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), the City contends that because McClain sued both Horton and the City, McClain lost the opportunity to sue either. The City asserts that Horton was properly dismissed under section 101.106(e) of the Act, and, because McClain initially sued both Horton and the City, the City is immune from suit under section 101.106(b). The City asserts that the necessary consent to suit described in section 101.106(b) cannot be found within section 101.021 of the Act, which waives immunity for claims arising from the alleged negligence of a government employee in operating a motor vehicle, because, according to the City, where section 101.106(b) applies, it “operates to trump” the limited waiver of immunity in section 101.021. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).
McClain disagrees. He contends that because Horton was operating a motor vehicle in the course and scope of his employment at the time of the accident, section 101.021’s waiver of immunity for claims arising from negligence of operating a motor vehicle constitutes the consent described in section 101.106(b). See id. Thus, according to McClain, section 101.106(b) does not operate to bar his suit against the City.
B. City of Houston v. Esparza
This court recently construed section 101.106 of the Texas Tort Claims Act in a case with facts similar to this case. City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.). In that case, the plaintiff, Esparza, filed suit against both the City of Houston and its employee, claiming that the employee was negligent in causing a car accident. Id. at *1. The City moved to dismiss the employee under section 101.106(e). Id. It also filed a plea to the jurisdiction asserting that Esparza’s claims against the City were barred by section 101.106(b) of the Act. Id. The trial court granted the motion to dismiss the employee but denied the City’s plea to the jurisdiction. Id.
On rehearing, this Court affirmed the judgment of the trial court. We rejected the City’s contention that subsections (b) and (e) apply without reference to each other when a claimant sues both the government and its employee together, thus requiring dismissal of both defendants. Id. at *6. We concluded, instead, that when a claimant fails to elect between defendants and instead sues both the government unit and its employee, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed. See Esparza, 2011 WL 4935990, at *10 (“By operation of subsection (e), Esparza’s filing of suit and the City’s motion to dismiss [the employee] resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than [the employee].”).
With regard to what constitutes “consent” under section 101.106(b), we held “a claimant may find ‘consent’ to suit within the Act’s limited waivers of immunity only if the claimant has satisfied the Act’s other jurisdictional requirements, including those set forth in the election-of-remedies provision.” Id. A claimant satisfies section 101.106 by electing—voluntarily or involuntarily—whether he will prosecute his claims against a governmental unit or its employee, forever forgoing prosecution against the other. Id.
C. Application of Section 101.106 to McClain’s Claims
Following Esparza, we reject the City’s contention that subsections (b) and (e) apply without reference to each other. Under section 101.106, McClain’s filing of suit against both Horton and the City invoked subsection (e). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). By operation of subsection (e), McClain’s filing of suit and the City’s motion to dismiss Horton resulted in a forced election: whether he intended to or not, McClain elected to pursue his claims against the City rather than Horton. Id.; see Esparza, 2011 WL 4925990, at *10; see also Garcia, 253 S.W.3d at 657 (“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”). Thus, McClain satisfied the Act’s election-of-remedies provision.
We also reject the City’s contention that the limited waiver of immunity in section 101.021 cannot constitute “consent” to suit in cases in which section 101.106(b) applies. See Esparza, 2011 WL 4935990, at *10 (concluding that claimant may find “consent” to suit within the Texas Tort Claims Act limited waivers of immunity if he has satisfied the Act’s other jurisdictional requirements). But we do not go so far as to adopt McClain’s contention that the limited waiver of immunity found in section 101.021, alone, is sufficient to find the City consented to suit within the meaning of section 101.106(b). See id. at *7–8. Rather, we conclude that the limited waiver of immunity found in section 101.021 may constitute the “consent” required by section 101.106(b), and section 101.106(b) therefore does not bar McClain from pursuing his claims against the City, his elected defendant, if he has satisfied the Act’s other jurisdictional requirements.[3] See Esparza, 2011 WL 4925990, at *10; See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b), (e).
Conclusion
We hold that the trial court properly denied the City’s plea to the jurisdiction under section 101.106(b) of the Texas Tort Claims Act. We therefore affirm the trial court’s order.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
[1] Carita Douvio was also a plaintiff when this suit was initially filed. Because she
was dismissed from the suit for failure to respond to discovery and is not a party to
this appeal, we will address only McClain’s claims.
[2] TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (authorizing interlocutory appeal from denial of governmental unit’s plea to jurisdiction).
[3] The City does not challenge McClain’s compliance with any of the Texas Tort Claim Act’s jurisdictional requirements other than the election-of-remedies provision.
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