More of the same: City of Houston insists on going forward with appeals on immunity issue it has already lost on in several prior cases. Here is the first of two more such tort claims cases decided by the First Court of Appeals on the last day of May:
The City of Houston v. Guzman
NO. 01-11-00234-CV (Tex.App.- Houston May 31, 2012)
(denial of city's plea to the jurisdiction affirmed)
The City of Houston brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Enrique Guzman. In its sole issue, the City contends that because Guzman chose to file suit against both the City and its employee, Brent Foltz, regarding the same subject matter, Guzman’s claims against the City were barred by section 101.106(b) of the Texas Tort Claims Act. We affirm.
Guzman filed suit against both the City and Foltz, alleging personal injuries when the Houston Police Department patrol car driven by Sgt. Foltz ran into his vehicle. According to Guzman, Foltz, who was driving the wrong way down a one‑way street at 1:30 a.m., ran a red light and struck a citizen’s vehicle. His patrol car then rebounded from that collision and smashed into Harris County Deputy Sheriff Guzman’s vehicle as it was stopped at a red light. Guzman asserts that Foltz was in the course and scope of his City employment and, as such, the City is liable under the doctrines of negligent entrustment, negligent hiring, failure to properly train, failure to properly supervise, and respondeat superior. Foltz, who was never served and never appeared in this case, was later removed as a defendant by Guzman.
Guzman’s employer, Harris County, filed an original petition in intervention for subrogated interests, seeking to collect for the benefits it had provided Guzman and expenses it had incurred as a self-insured worker’s compensation provider and any related damages to which Guzman was entitled to under the law, plus any property damage losses or loss of revenue sustained by the County. Guzman subsequently filed his second amended petition, naming only the City as a defendant.
The City’s subsequent plea to the jurisdiction contended that, because Guzman initially filed suit against Foltz for damages arising from the same subject matter as his claims against the City, all his tort claims against the City were barred by section 101.106(b) of the Tort Claims Act.
The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal followed.
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). 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.
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, 638–39 (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. In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent. Gonzalez, 82 S.W.3d at 327. “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’” Id. (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 Supp. 2011)).
Relying on Garcia, the City argues that the election-of-remedies provision requires Guzman to sue either the City or its employee, and a claimant who sues both loses the opportunity to sue the City under section 101.106(b). See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Guzman responds arguing, inter alia, that section (b) is inapplicable to his suit.
During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments advanced by the City in City of Houston v. Esparza. No. 01–11–00046–CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (rejecting City’s contention that § 101.106(b) bars suit against governmental unit when suit originally filed against both governmental unit and employee); see also Tex. Dep’t of Aging and Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction). As such, this Court’s jurisprudence dictates our holding that the trial court properly denied the City’s plea to the jurisdiction with respect to Guzman’s claims and, because the County’s claims are derivative of Guzman’s claims, properly denied the City’s plea to the jurisdiction with respect to those claims as well. See generally City of Hous. v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (holding employee’s failure to comply with notice requirement barred his claim against city, as well as insurer’s subrogation suit, which was derivative of employee’s and dependent upon employee’s recovery).
We overrule the City’s sole issue.
We affirm the order of the trial court.
Panel consists of Justices Keyes, Bland, and Sharp.
 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011) (permitting interlocutory appeals from court order that grants or denies plea to jurisdiction by governmental unit).
 See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011).