The City of Houston v. Lackey, NO. 01-11-00248-CV (Tex.App. – Houston [1st Dist.] May 31, 2012) (City’s jurisdictional defense in suit brought under the Texas Tort Claims Act rejected; trial court’s denial of city’s plea to the jurisdiction affirmed)
|City of Houston - City Hall|
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, Rachel Lackey.  In its sole issue, the City contends that, because Lackey chose to file suit against both the City and its employee, Will Reynolds, regarding the same subject matter, Lackey’s claims against the City are barred by section 101.106(b) of the Texas Tort Claims Act. We affirm.
Lackey filed suit against both the City and Reynolds, alleging personal injuries sustained when the City vehicle operated by Reynolds backed into her vehicle as a result of Reynolds’ negligence while in the course and scope of his employment with the City and, as such, the City is liable under the doctrines of negligent entrustment and respondeat superior.
The City filed a general denial and asserted governmental immunity. The City further asserted that it could not be held vicariously liable for acts of its agents and employees who are entitled to official immunity. Reynolds filed a separate answer in which he generally denied Lackey’s allegations and claimed both governmental and official immunity.
Pursuant to the Texas Tort Claims Act, the City subsequently moved to dismiss all of Lackey’s claims against Reynolds. Lackey’s motion to “non-suit” her claims against Reynolds were granted. Thereafter, the City filed a plea to the jurisdiction, contending that because Lackey sued Reynolds, she had made an irrevocable election to proceed against Reynolds under section 101.106(b) of the Act’s election-of-remedies provision and was immediately and forever barred from any suit or recovery against the City regarding the same subject matter. 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 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. 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 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 Lackey 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), or, in the City’s words, because Lackey “chose to file suit against [the City’s] employee, Reynolds, regarding the same subject matter, all her tort claims against [the City] were dead on arrival the moment suit was filed.” See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Lackey responds arguing, inter alia, that section (b) is inapplicable to her suit.
During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments urged 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 [1 Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction). Thus, we hold that the trial court properly denied the City’s plea to the jurisdiction and 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).
 See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011).
 Although characterized as a “non-suit,” this was technically a voluntary partial dismissal of claims. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306–07 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Presumably because it granted Lackey’s “non-suit,” the trial court never ruled on the City’s section 101.106(e) motion.
 See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b).