Thursday, October 13, 2011

TTCA: Election of Remedies under the Texas Supreme Court's Construction of Sovereign Immunity and Tort Claims Act

Justice Jane Bland explains evolution of the election-of-remedies trap in the Texas Tort Claims Act in lengthy panel opinion affirming trial court's denial of the City of Houston's plea to the jurisdiction.

City of Houston v. Gloria Esparza (Tex.App.- Houston [1st Dist] Oct. 7, 2011)(op. on rehearing)

Opinion issued October 7, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-00046-CV

———————————

CITY OF HOUSTON, Appellant

V.

GLORIA ESPARZA, Appellee


On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 0966566


OPINION ON REHEARING


After a car wreck, Gloria Esparza sued the City of Houston, alleging that its employee’s negligence was the cause. She sued the employee, too, but the employee was dismissed from the suit under the Texas Tort Claims Act’s election-of-remedies provision. The trial court denied the City’s plea to the jurisdiction under the same provision, from which the City appeals.[1] We issued an opinion on June 9, 2011 in favor of the City. Esparza has moved for rehearing, raising new jurisdictional arguments. We grant rehearing and withdraw our previous opinion. We conclude that the trial court properly denied the City’s plea to the jurisdiction. We therefore affirm the trial court’s order.

Background

Esparza sued the City and its employee, Manuel Espinoza, alleging that Espinoza negligently caused a car accident involving Esparza.[2] The City moved to dismiss Esparza’s claims against Espinoza individually, pursuant to section 101.106(e) of the Tort Claims Act.[3] It also filed a plea to the jurisdiction, asserting that Esparza’s claims against the City are barred by section 101.106(b) of the Act.[4] The trial court granted the motion to dismiss Espinoza, but it denied the City’s plea to the jurisdiction. The City challenges the denial of its plea.

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, no pet.). 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 merit of the case, but only the pleadings and evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

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).

Determination of that issue here turns on construction of the Tort Claims Act’s election-of-remedies provision. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 2011). In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent. State ex rel. State Dep’t of Hwys. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Alexander v. Walker, No. 01–10–00147–CV, 2011 WL 2500482, at *2 (Tex. App.—Houston [1st Dist.] Jan. 13, 2011, no pet.); see also TEX. GOV’T CODE ANN. § 312.005 (West 2005). We first look to the plain language of the statute. Fitzgerald v. Adv. Spine Fixation Sys., 996 S.W.2d 864, 865 (Tex. 1999); Alexander, 2011 WL 2500482, at *2. We may also consider the object the Legislature sought to attain, the circumstances under which it enacted the statute, legislative history, former statutory provisions, and the consequences of a particular construction. See TEX. GOV’T CODE ANN. § 311.023(1)–(5) (West 2005). "We ‘read the statute as a whole and interpret it to give effect to every part.’" Gonzalez, 82 S.W.3d at 327 (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing TEX. GOV’T CODE ANN. § 311.034 (West 2005)).

Subject-Matter Jurisdiction

A. The Evolution of Section 101.106 of the Tort Claims Act

Governmental immunity protects subdivisions of the State, such as the City, from lawsuits and liability, which would otherwise "hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purpose." Garcia, 253 S.W.3d at 655–56 (quoting Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)). The State can waive this immunity, and the Legislature has enacted statutes that create limited waivers with respect to specific types of claims. E.g., TEX. CIV. PRAC. & REM. CODE ANN. § 101.001–.109 (West 2011) [Tort Claims Act]; TEX. LAB. CODE ANN. § 21.001–.556 (West 2011) [Texas Commission on Human Rights Act (TCHRA)]. The Tort Claims Act "is the only, albeit limited, avenue for common-law recovery against the government," and governs all tort claims asserted against a governmental entity. Garcia, 253 S.W.3d at 659.

Historically, in an effort to avoid the Tort Claims Act’s restrictions, claimants under the Act sometimes chose to sue the employee of a governmental entity, rather than the entity itself. Id. at 656. Thus, in 1985, the Legislature added to the Act a provision that prevented claimants from suing government employees after settlement or adjudication of claims against the government employer when the claims involved the same underlying conduct. Act of May 17, 1985, 69th Leg., R. S. ch. 959, § 1, 1985 Tex. Gen. Laws 3242 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 101.106). Claimants nonetheless continued to sue both the governmental entity and its employee, often alleging that the employee acted within the scope of his employment or, in the alternative, that the employee was outside the scope of his employment. Garcia, 253 S.W.3d at 656. This resulted in increased litigation costs for the government. Id. To alleviate this problem, the Legislature amended section 101.106 in 2003 to force claimants to "decide at the outset whether an 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." Id. at 657.

Under the amended provision, entitled "Election of Remedies," a claimant’s filing of suit operates as a binding election between pursuing her tort claims against a governmental entity or pursuing them against its employees individually. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. The provision states:

(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.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(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.

Id.

The Supreme Court of Texas has recognized that the Tort Claims Act’s election-of-remedies provision imposes "irrevocable consequences" on a claimant’s decision regarding whom to sue, such that a claimant "must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually." Garcia, 253 S.W.3d at 657.

B. The Parties’ Contentions

The City contends that Esparza has failed to comply with the election-of-remedies provision because she sued both the City and its employee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. The City asserts that the provision requires a claimant to choose between suing either the City or its employee, and a claimant who instead sues both loses the opportunity to sue either—the employee is dismissed under subsection (e) and the government is immune under subsection (b). See id. §§ 101.106(b), 101.106(e).

Esparza responds on several grounds. First, Esparza asserts that she did not sue the City’s employee, Espinoza, because he was not served and did not appear in the case, and thus the trial court never acquired personal jurisdiction over him. Because the trial court did not acquire personal jurisdiction over Espinoza, Esparza contends that he was never a party and that subsection (b) does not apply to her suit. Second, she contends that if her suit was, at least initially, against both the City and Espinoza, then section 101.106(e), and not section 101.106(b), applies to her suit. Finally, she contends that, even if subsection (b) applies to her suit, she falls within a "consent" exception to that provision because her claims against the City fall within the limited waiver of immunity in section 101.021, for claims arising out of a government employee’s negligent operation of a motor vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2011); id. § 101.106(b) (barring suit against a governmental unit, when applicable, "unless the governmental unit consents."). Esparza contends that this is all that is necessary to satisfy section 101.106(b)’s "consent" exception.

The City does not challenge Esparza’s contention that her claims fall within the scope of section 101.021’s limited waiver of immunity for claims involving a government employee’s negligent operation of a motor vehicle. Instead, the City responds that "consent" within the meaning of subsection (b) cannot be found within the Tort Claims Act itself, because to do so would render subsection (b) meaningless. The City contends that "consent" must be found in an independent statutory waiver of immunity outside the Act, and no such independent waiver of immunity is pled here. We address the parties’ contentions in turn.

C. Esparza’s Claim that She Did Not Sue a Government Employee

We reject Esparza’s contention that she did not sue the City’s employee, Espinoza, within the meaning of the election-of-remedies provision. Under the plain language of the statute, the bar to suit or recovery against a governmental employer stems from the claimant’s "filing of a suit against" its employee, not the trial court’s acquiring personal jurisdiction over the employee, and it is triggered "immediately." TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (b). As this Court has previously noted, "the 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."[5] Alexander, 2011 WL 2500482, at *4. Thus, when Esparza filed her petition naming Espinoza and the City as defendants, she filed suit against both of them within the meaning of the election-of-remedies provision.

D. The City’s Construction of Section 101.106(b) and Esparza’s Alternative Constructions

The City contends that section 101.106(b) operates as a complete bar to claimants who sue both it and its employees, even if the government has waived its immunity for the type of claim the claimant alleges. Esparza contends that subsection (b) does not bar her suit because it does not apply to her suit or because the government has "consented" to her suit within the meaning of that subsection. For the reasons detailed below, we reject Esparza’s contention that alleging facts that fall within the subject matter of one of the Tort Claims Act’s waivers of immunity is, alone, sufficient to establish the government’s consent to suit under section 101.106(b), without also showing that a claimant has met the Act’s other jurisdictional requirements, including the election-of-remedies provision. But we conclude that Esparza has complied with the jurisdictional requirements of the election-of-remedies provision. She elected her remedy—not by choice, but by operation of the statute. When a claimant fails to elect between defendants and instead sues both, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). We therefore reject the City’s contention that Esparza’s claims against it are barred by section 101.106(b).

1. Overview of Section 101.106 of the Tort Claims Act

Since its enactment, there has been considerable litigation over the election-of-remedies provision in the Tort Claims Act, section 101.106. Giving effect to its plain language[6] and its provisions as a whole,[7] section 101.106 operates in two ways with respect to a claimant’s filing of suit:

· Voluntary Election: A claimant may choose whether to pursue her common law tort claims against a governmental unit or its employees by filing suit against one or the other.

o If the claimant elects to bring common law tort claims against a governmental unit instead of its employee, 101.106(a) forever bars the claimant’s common law tort claims against the employee arising out of the same subject matter.[8]

o If the claimant elects to bring claims against a government employee instead of his employer, section 101.106(b) forever bars the claimant’s common law tort claims against the governmental unit arising out of the same subject matter. Section 101.106(b) also forever bars any other claims against the governmental unit arising out of the same subject matter unless authorized by an independent statute, the jurisdictional requirements of which the claimant has satisfied.[9]

· Involuntary Election: If a claimant fails to make an election or, under certain circumstances, if the claimant elects incorrectly, the election-of-remedies provision operates to elect the governmental unit as the party against which she may pursue her claims.

o If a claimant attempts to bring common law tort claims against both the governmental unit and its employee, on the government’s motion,[10] section 101.106(e) forces the claimant to elect the governmental unit as the claimant’s chosen defendant, requiring dismissal of the government employee and endowing the employee with immunity under section 101.106(a).

o If a claimant elects to bring common law tort claims against a government employee instead of his employer, but the employee establishes that his actions were within the scope of his employment and the suit could have been brought against the governmental unit, subsection 101.106(f) allows the claimant to switch her election to the governmental unit if she amends her pleadings to dismiss the employee and name the governmental unit as a defendant within thirty days. The government employee then has immunity under section 101.106(a).[11] If the claimant fails to timely amend, her election to sue the employee stands, giving the governmental unit immunity under (b),[12] and leaving as defendant the employee who, having demonstrated that he acted within the scope of his employment, is entitled to dismissal of the claimant’s common law tort claims against him.[13]

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106; See also Garcia, 253 S.W.3d at 657 ("Under the Tort Claims Act’s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).").

2. Interaction Among Subsections (a), (b), and (e)

We reject 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 the dismissal of both defendants. Instead, the statutory scheme 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. This construction is compelled by the statute’s plain language and structure and is consistent with the Texas Supreme Court’s jurisprudence. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) ("If suit is filed under this chapter against both a governmental unit and any of its employees . . ."); Garcia, 253 S.W.3d at 657 (stating that, under section 101.106, suit may be brought against governmental unit but not its employees in three situations, including "when suit is filed against both the governmental unit and its employee"). If, as the City argues, subsections (a) and (b) apply independently to any suit brought against a governmental unit and its employee simultaneously and mandate dismissal of both the governmental unit and its employee in such cases, then subsection (e), which dictates the dismissal of the employee in such cases, would be superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e).

A construction that applies subsection (e) to force an election of the governmental unit as the exclusive defendant in suits like this one accomplishes the Legislature’s recognized goals for the statute. The statute forces an election between defendants—whether by the claimant’s choice or by operation of the statute—and gives that election "irrevocable consequences." In doing so, section 101.106 eliminates the redundancy and delay associated with alternative theories of liability against a governmental unit and its employee. Garcia, 253 S.W.3d at 657; see Alexander, 2011 WL 2500482, at *3. It likewise discourages a claimant from attempting to circumvent the Act by suing a government employee individually, because a claimant who does so is foreclosed from any future recovery against the governmental unit, whether she prevails against the employee or not. Garcia, 253 S.W.3d at 657; see also Alexander, 2011 WL 2500482, at *3. Finally, while 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. It is this construction that we adopt in rejecting the City’s contention that section 101.106(b) operates as a bar to a suit against it that otherwise comports with the Act’s jurisdictional constraints. Because our sister court has adopted Esparza’s alternative interpretation—a broad "consent" exception—in rejecting the City’s argument, we next discuss its statutory implications.

3. Consent to Suit Under Subsection 101.106(b)

Subsection 101.106(b) of the Tort Claims Act is qualified by a "consent" exception: when applicable, subsection (b) bars suit against a governmental unit "unless the governmental unit consents." See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b). Unlike some of our sister courts, we do not read this exception as creating a blanket waiver of the very immunity established by subsection (b). Cf., e.g., Amadi v. City of Houston, No. 14-10-01216-CV, 2011 WL 2638221, at *4–5 (Tex. App.—Houston [14th Dist.] July 7, 2011, no pet. h.); Barnum v. Ngakoue, No. 03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin April 29, 2011, pet. filed); City of N. Richland Hills v. Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth 2011, pet. filed). Rather, subsection (b)’s "consent" exception permits a claimant to bring suit against a governmental unit only if the claimant has complied with all of the authorizing statute’s jurisdictional requirements for bringing suit. See Garcia, 253 S.W.3d at 660 ("[T]he Legislature, on behalf of [the school district], has consented to suits brought under the TCHRA, provided the procedures outlined in the statute have been met.") For claims brought under the Tort Claims Act, the claimant must meet all of the Act’s jurisdictional constraints.[14]

By its plain language and very nature,[15] the election-of-remedies provision is such a jurisdictional constraint. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 239–240 (Tex. App.—San Antonio 2010, no pet.) (observing that, although it has procedural aspects, section 101.106 is jurisdictional in nature). Although the Act waives immunity for certain claims,[16] the election-of-remedies provision expressly confers immunity on the un-elected defendant for all claims brought under the Act, regardless of whether the Act otherwise waives immunity for the sorts of claims at issue. See Garcia, 253 S.W.3d at 659–60 (noting that, when applicable, 101.106(b) bars claims outside of the Tort Claims Act, "not just suits for which the [Act] waives immunity or those that allege common law claims."); see also Franka, 332 S.W.3d at 371 n.9 (describing the character of the election-of-remedies provision as "conferring immunity"). Once a claimant has made an election under the statute—whether voluntarily or by operation of the statute—the claimant may never satisfy the Act’s jurisdictional prerequisites for bringing suit against the un-elected defendant.

We recognize that this construction of the "consent" exception may conflict with the analysis in recent cases out of the Fort Worth, Houston Fourteenth and Austin Courts of Appeals. See Friend, 337 S.W.3d at 392–93; City of Houston v. Johnson, No. 14-11-00220-CV, 2011 WL 3207964, at *2 (Tex. App.—Houston [14th Dist.] July 28, 2011, no pet. h.); City of Houston v. Cooper, No. 14-11-00092-CV, 2011 WL 3207958, at *2 (Tex. App.—Houston [14th Dist.] July 28, 2011, no pet. h.); City of Houston v. Rodriguez, No. 14-11-00136-CV, 2011 WL 2683557, at *3–5 (Tex. App.—Houston [14th Dist.] July 12, 2011, no pet. h.); Amadi, 2011 WL 2638221, at *4–5; Barnum, 2011 WL 1642179, at *10–12. Relying on the Texas Supreme Court’s opinion in Garcia, these courts have relied exclusively on the Tort Claims Act’s waivers of immunity for particular kinds of claims—claims arising out of the negligent operation of a motor-vehicle,[17] premise defects,[18] or the condition or use of tangible personal or real property[19]—to hold that the government "consents" to suit in those kinds of cases, without reference to whether the claimant has complied with the Act’s other jurisdictional requirements. See Friend, 337 S.W.3d at 392–97 (finding consent as to claim pled within a limited waiver of immunity but not those outside the limited waivers); Johnson, 2011 WL 3207964, at *2 (holding that city consented to claims based on negligent operation of motor-driven vehicle); Cooper, 2011 WL 3207958, at *2 (same); Rodriguez, 2011 WL 2683557, at *3–4 (same); Amadi, 2011 WL 2638221, at *4 (same); Barnum, 2011 WL 1642179, at *10–12 (same). We disagree that these limited waivers of immunity, alone, establish a government’s consent to suit.

First, we do not read Garcia as holding that the "consent" exception in subsection (b) is nonetheless satisfied even absent compliance with all of the jurisdictional requirements of the Tort Claims Act or some independent statutory waiver of immunity. The Garcia Court stated its holding on "consent" in these words: [T]he Legislature, on behalf of [the school district], has consented to suits brought under the TCHRA, provided the procedures outlined in the statute have been met." Garcia, 253 S.W.3d at 660 (emphasis added). Like the TCHRA, the Tort Claims Act prescribes certain procedures with which a claimant must comply in order to fall within the Act’s waivers of immunity. E.g., TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (West 2011) (prescribing a pre-suit notice requirement). A claimant who fails to comply with the Act’s jurisdictional requirements falls outside the Act’s limited waivers of immunity, regardless of whether the claim is one for which immunity is otherwise waived under the Act. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia, 324 S.W.3d 544, 546 (Tex. 2010) ("The Texas Tort Claims Act waives immunity from suit ‘to the extent of liability created by [the Act].’ To take advantage of this waiver, the plaintiff must notify the government of a claim within six months.") (citations omitted); see also TEX. GOV’T CODE ANN. § 31.034 (West Supp. 2010) ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."). The election-of-remedies provision is such a jurisdictional requirement.

Second, if the Tort Claims Act’s limited waivers of immunity constituted "consent" in and of themselves, as some courts of appeals have indicated, then the "consent" exception appears to swallow the rule entirely. Cf. Franka, 332 S.W.3d at 393 ("Statutory language should not be read as pointless if it is reasonably susceptible to another construction."). The Austin Court of Appeals recognized this problem: "[T]his construction of the term ‘consents’ in subsection 101.106(b) seems to eliminate any real effect to the provision because plaintiffs have always been prohibited from suing governmental employers when immunity has not been waived. Stated differently, subsection 101.106(b) only bars subsequent suits against governmental employers that were already barred through the doctrine of sovereign immunity." Barnum, 2011 WL 1642179, at *10.

Barnum itself demonstrates the problematic effect of a construction of section 101.106(b) that finds "consent" in the Act’s limited waivers of immunity alone. In that case, Ngakoue elected to sue a government employee, Barnum, after they were involved in a car accident. Id. at *2. Barnum filed a motion for dismissal under section 101.106(f), demonstrating that he was acting within the scope of his employment with the Texas Adjutant General’s Office (AGO) at the time of the accident. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). Ngakoue failed to timely amend his pleadings under subsection (f), as required to treat Ngakoue’s suit as an election to sue the AGO, rather than Barnum, under that subsection. Barnum, 2011 WL 1642179, at *6. Under our construction of the election-of-remedies provision, the result would be that Ngakoue’s election to sue Barnum would stand, such that the AGO would be immune under subsection (b). Under the construction adopted by the Austin Court of Appeals and others, subsection (b) did not bar Ngakoue’s claims against the AGO, even though Ngakoue failed to comply with the procedures of subsection (f) because he did not timely amend his pleadings to sue the AGO and dismiss Barnum. Id. at *11. Instead, the court held that, because those claims fell within the Tort Claims Act’s limited waiver of immunity for negligent operation of a motor-vehicle, the AGO had "consented" to the suit against it. Id. Under that construction, a claimant has no incentive to comply with subsection (f)’s procedures—whether he complies or does not comply, the outcome will be that an employee is dismissed, but the claimant may still bring claims against the governmental unit. See id.

Similarly, if the Act’s limited waivers of immunity were, alone, sufficient to constitute "consent" to suit under section 101.106(b), a car-accident claimant could avoid electing between defendants by first suing the government employee individually and then suing the employer if she were unsuccessful in obtaining a judgment against the employee. This result neither discourages claimants from suing government employees in an effort to circumvent the restrictions of the Act nor "reduc[es] 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 (identifying the legislative purposes of the election-of-remedies provision); see also Barnum, 2011 WL 1642179, at *11; Alexander, 2011 WL 2500482, at *4.

By contrast, under our construction of the election-of-remedies provision, subsections (a) and (b) operate as mirror provisions with respect to claims brought under the Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (b); see also Alexander, 2011 WL 2500482, at *3 (describing subsection (b) as a "parallel provision" to subsection (a)); cf. Barnum, 2011 WL 1642179, at *11 (noting that subsections (a) and (b), like subsections (c) and (d), are "mirror provision[s]" evidencing an intent to prevent a claimant from suing or recovering against either a governmental employer or its employee and then subsequently suing or recovering against the other). Specifically, once 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. See Kamel v. Univ. of Tex. Health Ctr., 333 S.W.3d 676, 688 (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). Concordantly, under our construction of subsection (b), once a claimant elects to sue a government employee instead of its governmental employer, [20] subsection (b) immediately and forever bars the claimant from bringing common law tort claims regarding that subject matter against the employer.[21]

Our construction of section 101.106(b) is consistent with previous decisions issued by the San Antonio, El Paso, Corpus Christi, and Waco Courts of Appeals. See Tex. Tech Univ. Health Sci. Ctr. v. Williams, 344 S.W.3d 508, 513–14 (Tex. App.—El Paso 2011, no pet.); Webber-Eells, 327 S.W.3d at 236; Huntsville Indep. Sch. Dist. v. Briggs, 262 S.W.3d 390, 394 (Tex. App.—Waco 2008, pet. denied); Tex. Dept. of Agri. v. Calderon, 221 S.W.3d 918, 924 (Tex. App.—Corpus Christi 2007, no pet.), disapproved of on other grounds by Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In these cases, courts of appeals applied section 101.106(b) to bar common law tort claims against a governmental unit when the claimant brought claims regarding the same subject matter against a government employee and failed to comply with section 101.106(f)’s procedures for dismissing the employee and suing the governmental unit, even though the claims were pled as falling within the Act’s limited waivers of immunity. See Williams, 344 S.W.3d at 514 (dismissing claims against governmental employer based on alleged negligent operation of motor vehicle); Webber-Eells, 327 S.W.3d at 236 (dismissing claims against governmental employer based on alleged misuse of tangible property); Briggs, 262 S.W.3d at 394 (dismissing claims against governmental employer based on alleged negligent operation of motor vehicle); Calderon, 221 S.W.3d at 924 (dismissing claims against governmental employer based on alleged negligent operation of motor vehicle).

For these reasons, we conclude that a claimant may find "consent" to suit within the Tort Claims 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. A claimant satisfies the provision by electing—voluntarily or involuntarily—whether she will prosecute her claims against a governmental unit or its employee, forever forgoing prosecution against the other.

4. Application of the Election-of-Remedies Provision to Esparza’s Claims Against the City

Under section 101.106, Esparza’s filing of suit against both Espinoza and the City invoked subsection (e). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). By operation of subsection (e), Esparza’s filing of suit and the City’s motion to dismiss Espinoza resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than Espinoza. Id.; 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)"). The trial court therefore properly dismissed her claims against Espinoza, and she is forever barred from bringing common law tort claims against him arising out the accident at issue here. Id. § 101.106(a), (e). But, so long as she has otherwise complied with the jurisdictional requisites of the Tort Claims Act,[22] subsection (b) does not bar Esparza from pursuing her claims against the City, her elected defendant. See id. § 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 Tort Claims Act. We therefore affirm the trial court’s order

Jane Bland, Justice

Panel consists of Justices Keyes, Higley and Bland.

FOOTNOTES:

[1] See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (authorizing interlocutory appeal from denial of governmental unit’s plea to the jurisdiction).

Mineral estate owner vs. surface landowner disputes over drilling: legal principles

Texas law is well-established that owners of a dominant mineral estate have a right to use as much of the servient surface estate as is reasonably necessary to produce and remove the minerals from the property. See Ball v. Dillard, 602 S.W.2d 521, 523 (Tex. 1980) (citing Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302 (1943) (noting that grant of minerals would be worthless to grantee if he could not enter upon the land for exploration and extraction of minerals granted)). This necessarily includes the rights of ingress and egress upon the land for the exploration and production of oil and gas. See id. (holding surface lessee unreasonably interfered with mineral lessee’s right to access to land for mineral development purposes by locking gate to only usable road into property).[5]

A mineral lessee’s use of the surface estate should be exercised with due regard for the rights of the surface estate’s owner. Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971). This concept of “due regard,” known as the accommodation doctrine, was first articulated in Getty Oil and balances the rights of the surface owner and the mineral owner in the use of the surface. Id. at 622.
  
The Hegars do not dispute Key Operating’s right to use the roadway to produce and remove minerals from under the Hegar Tract nor do they argue that Key Operating’s use of the road is unreasonable pursuant to the accommodation doctrine. Rather, they contend that Key Operating has no right to use the road to extract minerals from an adjoining property.

SOURCE: FIRST COURT OF APPEALS - 01-10-00350-CV - 10/13/11 

Key Operating & Equipment, Inc. v. Will Hegar and Loree Hegar--Appeal from 21st District Court of Washington County

Opinion issued October 13, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00350-CV

———————————

KEY OPERATING & EQUIPMENT, INC., Appellant

V.

WILL HEGAR AND LOREE HEGAR, Appellees

On Appeal from the 21st District Court

Washington County, Texas
Trial Court Case No. 33,968

MEMORANDUM OPINION

Key Operating & Equipment, Inc. appeals from a final judgment enjoining it from using a road that crosses Will and Loree Hegar’s property. We reverse and render judgment in favor of Key Operating & Equipment, Inc.
 
BACKGROUND
 
Key Operating & Equipment, Inc., an oil and gas exploration company owned by brothers Thomas and Kenneth Key, operates and produces oil in and around Washington County, Texas. In 1987, Key Operating[1] leased a sixty-acre parcel in Washington County known as the Richardson Tract and began operating the C. F. Richardson No. 1 Well thereon.

In 1994, Key Operating acquired oil and gas leases covering the Rosenbaum/Curbo Tract, a 191-acre tract contiguous with the Richardson Tract. After reworking the Rosenbaum No. 2 Well located there, Key Operating acquired production from this tract. In 1994 or 1995, Key Operating built a road across the tract that it has used to access its operations on both tracts since.[2] To date, Key Operating has spent approximately $150,000 on the construction and maintenance of the roadway. 

In December 2000, Thomas and Kenneth Key, individually, acquired an undivided twelve and one-half percent interest in the mineral estate underlying the Rosenbaum/Curbo Tract.[3] The brothers then leased their interest in the Rosenbaum/Curbo Tract to their exploration and production company, Key Operating, with a voluntary pooling provision that allows Key Operating to pool the acreage covered by the Key brother’s lease with other lands. Three days after acquiring the lease, Thomas Key, as president of Key Operating, executed a Declaration of Pooled Unit that pooled ten acres from the Rosenbaum/CurboTract with thirty acres from the adjoining Richardson Tract. Both the lease and the declaration were recorded in the public records of Washington County.
 
In May 2002, the Hegars purchased eighty-five acres of the Rosenbaum/Curbo Tract from Charles Curbo (Hegar Tract).[4] Both the Rosenbaum No. 2 Well and the road Key Operating built are on the Hegar Tract. Will Hegar testified that they knew at the time of purchase (1) that the property was subject to various oil and gas leases, and (2) that Key Operating used the road to service a well on the adjoining Richardson Tract. He also testified that the Hegars’ themselves currently use the road to access the home they built in 2003 or 2004 some 300 feet from the roadway. Hegar and his wife tolerated Key Operating’s use of the roadway until Key Operating drilled a new well on the Richardson Tract that dramatically increased traffic. As Hegar notes, "We’re trying to raise a family and we can’t do it with a highway going through our property."
 
In December 2007, the Hegars filed suit against Key Operating for trespass and sought a permanent injunction against Key Operating’s continued use of the roadway. Although it began as a jury trial, the parties agreed to withdraw the case from the jury before the defense rested and the balance of the case was tried to the bench. At the trial’s conclusion, the court permanently enjoined Key Operating from using the Hegar’s property surface, including the roadway, "for any purpose relating to the extraction, development, production, storage, transportation, or treatment of minerals produced from an adjoining" tract. The trial court filed findings of fact and conclusions of law at Key Operating’s request and this appeal ensued.
 
DISCUSSION

In three issues, Key Operating contends that (1) the trial court erred when it enjoined Key Operating from using the surface of the Hegars’ property; (2) the Hegars do not have standing to challenge the validity of the pooling agreement; and (3) assuming that it was necessary for the Hegars to prove that no oil was being produced from the Hegars’ property through the wells on the adjoining property, the Hegars’ evidence was insufficient.

Failure to brief issue waives it as ground for reversal by the court of appeals

Caveat Appellant: New issues and reason why the judgment of the trial court should be reversed cannot be raised for the first time in a reply brief. That would be too late.
   
Reply Brief Issue
  
Lastly, in his reply brief, Giraldo contends that the trial court erred in  basing summary judgment on deemed admissions because the record does not reflect that he actually received the  request for admissions.  Specifically, he asserts that Pavia sent the
request to the wrong address.  Because Giraldo did not raise an issue regarding service of
the request for admissions until his appellate reply brief, he has waived this  argument.  See Tex. R. App. P. 38.3;  Priddy v. Rawson, 282 S.W.3d 588, 597-98 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied).
 
Accordingly, we overrule this issue

PRESUMPTION OF RECEIPT
A certificate of service signed by a party or an attorney constitutes prima facie evidence of service and thus raises a presumption that the request for admissions was received. Approx. $14,980 State, 261 S.W.3d 182, 186 (Tex. App.—Houston [14th Dist.] 2008, no pet). In the absence of evidence rebutting the presumption, i.e., showing non-receipt, we presume service was perfected and the request for admissions received. Id.; Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo 2000, no pet.). Here, Pavia’s attorney included a certificate of service with the request for admissions, describing proper service under Texas Rule of Civil Procedure 21a. Tex. R. Civ. P. 21a ("Methods of Service"). In response, Giraldo has provided no proof that he did not actually receive the requests for admissions. The record contains neither an affidavit from Giraldo denying receipt nor any return receipt or stamp from the post office demonstrating a failure of delivery. See Approx. $14,980, 261 S.W.3d at 189 (holding that envelope stamped "unclaime" along with testimony denying receipt was sufficient to rebut the presumption of receipt)

SOURCE: Fourteenth Court of Appeals - Houston - 14-10-00780-CV - 11/13/11

Jurisdictional dismissal of injured garbage truck worker's suit against City of Bellaire reversed

Fourteenth Court of Appeals reverses grant of plea to the jurisdiction which precluded worker from pursuing a remedy for injury sustained while riding in the back of a garbage truck.  

Reversed and Remanded and Opinion filed October 13, 2011.

In The
Fourteenth Court of Appeals
NO. 14-10-00757-CV

ELBERT JOHNSON, Appellant
V.
CITY OF BELLAIRE AND ROSA LARSON, Appellees

On Appeal from the 113th District Court
Harris County, Texas
[Judge PATRICIA ANN HANCOCK]
Trial Court Cause No. 2009-52647

O P I N I O N


Elbert Johnson appeals an order granting a plea to the jurisdiction in favor of
appellees, the City of Bellaire and Rosa Larson (collectively, the “City”). See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008) (permitting interlocutory appeal
from an order that “grants or denies a plea to the jurisdiction by a governmental unit”).
Johnson contends that the trial court erred by granting the City’s plea to the jurisdiction
based on governmental immunity. We reverse and remand.2


Background


We outline the facts based on the pleadings and the evidence presented in the light
most favorable to Johnson as the nonmovant below.


Johnson was an employee of Magnum Staffing Services, Inc. when Magnum sent
him to work for the City of Bellaire in the winter of 2005. Johnson first began working
for the City as a helper on a limb-and-brush truck. Later, Johnson was assigned to work
as a helper on one of the City’s garbage trucks. Rosa Larson drove the truck; Johnson’s
cousin, Irving Flanagan, was the other helper.


Johnson was injured on January 23, 2008 while working as a helper on the
garbage truck Larson was driving. According to Johnson, he and Flanagan were riding
on metal steps at the back of the truck when Larson made a “hard” stop at a stop sign.
Larson then accelerated and turned left onto Newcastle. Johnson fell into the garbage
truck’s hopper and was knocked unconscious. When Johnson woke up, his arm was
trapped in the garbage packer. Johnson’s arm was amputated as a result of the accident.
Johnson sued the City and Larson on August 18, 2009 for negligence. Johnson
alleged he was entitled to compensation for the “personal injuries proximately caused by
the wrongful act or omission or negligence of Rosa Larson, an employee, agent or
independent contractor of the City of Bellaire, arising from the operation or use of a
motor-driven vehicle or motor-driven equipment.” He alleged that Larson breached her
duty to reasonably and prudently operate the City’s garbage truck, and that the breach of
this duty caused Johnson’s arm to be amputated.


The City generally denied Johnson’s allegations on September 23, 2009, and
asserted that (1) the City is entitled to governmental immunity; (2) Johnson was negligent
at the time of the accident and such negligence was a proximate cause of the accident;
and (3) Johnson’s claim is barred by the exclusive remedy of section 408.001 of the
Texas Labor Code. 3


The City filed its “Plea to the Jurisdiction, Alternatively, Motion for Summary
Judgment” on April 19, 2010. The City argued that Johnson’s suit should be dismissed
based on governmental immunity because (1) Johnson was a City employee under the
borrowed servant doctrine; (2) the legislature requires the City to provide workers’
compensation benefits to its employees; and (3) Lyons v. Texas A&M University, 545
S.W.2d 56, 59 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.), holds that
the legislature “has not waived the immunity of governmental entities in tort suits by their
employees” and “has retained the immunity and provided an alternative remedy through
workmen’s compensation.” Alternatively, the City argued that it is entitled to summary
judgment because, “as a matter of law, the uncontroverted evidence establishes that
Johnson’s suit is barred by the exclusive remedy provision of the Workers’
Compensation Act, Tex. Lab. Code Ann. § 408.001(a) (Vernon 2006).”


Johnson filed a response to the City’s “Plea to the Jurisdiction, Alternatively,
Motion for Summary Judgment” on May 6, 2010. He contended that the City’s plea to
the jurisdiction and summary judgment motion should be denied because the City failed
to establish that Johnson was covered by the City’s workers’ compensation policy. The
terms of the City’s policy provide that coverage is extended only to “paid employees;”
Johnson contended he was a borrowed servant rather than a paid employee of the City.
The City filed a reply to Johnson’s response on May 14, 2010. The City argued
that Johnson is covered by the City’s policy as a borrowed servant because (1) it is
required by law to provide workers’ compensation benefits to its employees; and (2) its
workers’ compensation policy excludes volunteers but not borrowed servants.

The trial court signed an order granting the City’s plea to the jurisdiction on May
17, 2010.

Johnson filed a motion for new trial on June 10, 2010. Relying on Port ElevatorBrownsville, L.L.C. v. Casados, 314 S.W.3d 529 (Tex. App.—Corpus Christi 2010, pet.
granted), Johnson asserted that the City was required to show that its workers’
compensation policy actually covered borrowed servants such as Johnson. Johnson 4
argued that “the City has not conclusively proven its policy provides coverage for Elbert
Johnson, thus creating a genuine issue of material fact which precludes the granting of its
Plea to the Jurisdiction or alternatively, Motion for Summary Judgment.”

The City responded to Johnson’s motion for new trial on July 14, 2010, asserting
that the trial court dismissed Johnson’s case for want of jurisdiction because the
legislature did not waive the immunity of governmental entities in tort suits by their
employees, and the uncontroverted evidence proved that Johnson is an employee of the
City under the borrowed servant doctrine. According to the City, whether Johnson is
covered by the City’s workers’ compensation policy is “relevant to the affirmative
defense of the workers’ compensation bar” but is “irrelevant to whether the Tort Claims
Act waives the City’s immunity from suit.” The City also argued that Casados is
inapplicable because it involved “the affirmative defense of the workers’ comp bar”
rather than governmental immunity.


The trial court denied Johnson’s motion for new trial on July 19, 2010. Johnson
filed a timely notice of appeal on August 4, 2010.


Analysis


I. Standard of Review


Governmental immunity protects political subdivisions of the state, including
cities, from lawsuits for money damages unless such immunity has been waived. Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). When governmental
immunity is waived by statute, the legislature must use clear and unambiguous language
indicating its intent do so. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320
S.W.3d 829, 838 (Tex. 2010); Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283
S.W.3d 838, 842 (Tex. 2009).


A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of
subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and 5
thus is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Trans. v. Jones, 8
S.W.3d 636, 637 (Tex. 1999). A plea questioning the trial court’s jurisdiction raises a
question of law that is reviewed de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex.
2007).


When reviewing whether a plea was properly granted, we first look to the
pleadings to determine if jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618,
621 (Tex. 2009). We construe the pleadings liberally in favor of the plaintiff and look to
the pleader’s intent. Id. If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable
defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be
afforded the opportunity to amend. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226-27 (Tex. 2004). If the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff
an opportunity to amend. Id. at 227.


If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, even where those facts may implicate the merits of the cause
of action. Kirwan, 298 S.W.3d at 622. If the evidence creates a fact issue as to the
jurisdictional issue, then it is for the factfinder to decide. Id. If the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules
on the plea to the jurisdiction as a matter of law. Id. In considering this evidence, we
take as true all evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Id.


II. Plea to the Jurisdiction


Johnson argues that the trial court erred by granting the City’s plea to the
jurisdiction. First, Johnson contends that “the pleadings clearly demonstrated that the
City of Bellaire waived immunity pursuant to Tex. Civ. Prac. & Rem. Code Ann. §
101.021.” Second, Johnson argues that he was not a City employee because (1) a 6
borrowed servant is not included in the definition of “employee” under section 504.001
of the Texas Labor Code,1 and (2) he was not paid by the City. Johnson argues that,
because he is not a City employee, his “claims are not barred by Chapter 504 [of the
Texas Labor Code], and the City is not immune from his suit.” Third, Johnson contends
that the City failed to establish as a matter of law that Johnson was covered under the
City’s workers’ compensation policy.


The City responds by pointing to Lyons and arguing that there is no waiver of
governmental immunity for Johnson’s tort claim because (1) “Johnson’s injury arose out
of the City’s governmental function of garbage collection;” (2) “the City complied with
the mandatory requirements of Chapter 504 to provide workers’ compensation benefits to
its employees by entering into an interlocal agreement with other political subdivisions
providing for self-insurance;” and (3) “Johnson was an employee of the City under the
borrowed servant doctrine.”
2
The City contends that, regardless of whether its workers’
compensation policy actually covers Johnson, governmental immunity applies under
Lyons if (1) the City provides workers’ compensation benefits to employees; and (2)
Johnson is deemed to be an employee under the borrowed servant doctrine.
We are not persuaded by the City’s argument. Assuming for argument’s sake that
Johnson was indeed an employee of the City under the borrowed servant doctrine, we fail
to see what remedy Johnson would have under the City’s workers’ compensation policy
if he was not covered by that policy.


In Lyons, Lyons sued Texas A&M University for personal injuries he sustained
while working on the University’s vessel. Lyons, 545 S.W.2d at 58. The trial court
dismissed Lyons’s suit, holding that “the State had not consented to be sued and had


1 Chapter 504 of the Texas Labor Code relates to workers’ compensation insurance coverage for employees of political subdivisions. A municipality is a “political subdivision.” Tex. Lab. Code Ann. §504.001(3) (Vernon 2006).
2 There seems to be no dispute that Johnson’s pleading alleges a claim under the Tort Claims Act that falls within the limited waiver of governmental immunity. The issue is whether the waiver of immunity under Section 101.021 of the Tort Claims Act is affected by Chapter 504 under the circumstances of this case.7


made the Texas A&M workmen’s compensation statute the exclusive remedy” for Lyons.
This court agreed and held that “[t]he Legislature has not waived governmental immunity
in tort suits by state employees. Rather, it has retained the immunity and provided an
alternative remedy through workmen’s compensation.” Id. The Texas Supreme Court
later acknowledged the Lyons holding in Duhart v. State, 610 S.W.2d 740, 743 (Tex.
1980).


Lyons reasoned that the legislature retained governmental immunity and provided
an alternative remedy. Lyons, 545 S.W.2d at 58. Therefore, an employee would not be
required to sue a governmental entity because the entity would compensate the employee
under its workers’ compensation policy. See id. Accordingly, for Johnson to have an
“alternative remedy,” Johnson must at a minimum be covered under the City’s workers’
compensation policy. Cf. Port Elevator-Brownsville, L.L.C. v. Casados, 314 S.W.3d 529,
533 (Tex. App.—Corpus Christi 2010, pet. granted) (for employer to be entitled to the
affirmative defense of the workers’ compensation bar, the employer must prove that the
plaintiff was an employee who is covered by the employer’s workers’ compensation
insurance). Otherwise, he would be without a remedy.


We next examine whether Johnson was covered by the City’s workers’
compensation interlocal agreement and thus had an alternative remedy through
workmen’s compensation. The interlocal agreement provides in section three that
“[s]tatutory worker’s compensation benefits are provided for paid employees of the
Employer Pool Member only.” The agreement does not define who qualifies as a “paid
employee.” The evidence establishes that Johnson was paid by Magnum, not by the City;
Johnson merely picked up his Magnum paycheck from the City.


At the very least, the evidence before us raises a fact question with respect to
whether Johnson is covered under the City’s interlocal agreement as a “paid employee”
of the City while he was employed by Mangum — and thus whether he has “an
alternative remedy through workmen’s compensation.” Viewing the evidence in the light
most favorable to the nonmovant, we conclude that the trial court erred by granting the 8
City’s plea to the jurisdiction because a fact question on the jurisdictional issue exists.
Accordingly, we sustain Johnson’s issue in that regard.


Conclusion


We reverse the trial court’s order granting the City’s plea to the jurisdiction and
remand this case for further proceedings to the trial court.


/s/ William J. Boyce
Justice


Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.