City of Houston car wreck litigation - Another unnecessary appeal from a PI suit under the Tort Claims Act

Since it offers a  nice compilation of the prior decisions on the same issue -- the city's effort to get immunity both for itself and its employee -- first the concurring opinion by Justice Brown:

City of Houston v.  Vellejo  

(Tex.App.- Houston [1st Dist.] May 22, 2012)

 

CONCURRING OPINION

  

This Court has already decided the issue presented in this case: whether the Tort Claims Act’s election-of-remedies provision bars a plaintiff’s tort claims against a governmental unit when the plaintiff initially sued both the governmental unit and its employee. See City of Houston v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston [1stDist.] Oct. 7, 2011, pet. filed).[1] I would follow this Court’s controlling precedent and affirm the trial court’s denial of the city’s plea to the jurisdiction.

I therefore concur in the Court’s opinion.

                                                                    Harvey Brown

                                                                   Justice

FOOTNOTE:

Since its issuance, this Court has consistently followed Esparza.See, e.g.,City of Houston v. Gwinn, No. 01-11-00524-CV, 2012 WL 1068591, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no. pet. h.) (mem. op.) (following Esparza); Metro. Transit Auth. v. Light, No. 01-11-00747-CV, 2012 WL 252187, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.) (same); City of Houston v. Tsaig, No. 01-11-00432-CV, 2012 WL 170606, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same); Tex. Dep’t of Aging & Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (same); City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.)(mem. op.) (same); City of Houston v. McClain, No. 01-11-00194-CV, 2011 WL 6015697, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.) (same); City of Houston v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.) (mem. op.) (same). Several other courts of appeals have also followed Esparza. See, e.g., Tex. Tech Univ. Health Scis. Ctr. v. Villagran, No. 07-11-0257-CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no. pet. h.); Tex. Dep’t of Pub. Safety, No. 04-11-00271-CV, 2012 WL 726916, at *4–7 (Tex. App.—San Antonio March 7, 2012, no pet. h.).

SOURCE: HOUSTON COURT OF APPELAS – FIRST DISTRICT - 01-11-00133-CV – 5/22/12 

CASE STYLE: The City of Houston v. Blanca A. Vellejo and Anjel Flores

City Hall

PANEL OPINION BY JUSTICE JENNINGS

In this interlocutory appeal,[1] appellant, the City of Houston (the “City”), challenges the trial court’s order denying its plea to the jurisdiction on the tort claims made against it by appellees, Blanca Vallejo and Anjel Flores (collectively, “Vallejo”). In its sole issue, the City contends that the trial court erred in denying its plea to the jurisdiction in which the City asserted that, by filing suit against both it and its employee regarding the same subject matter, Vallejois “immediately and forever barred from any suit or recovery against [the City] regarding the same subject matter.”[2]

We affirm.

Background

 In her original petition, Vallejo alleges that she sustained personal injuries when the car in which she was traveling was struck by another car owned by the City and driven by Joshua Anderson, a City employee.  Vallejo further alleges that Anderson was operating the car in a negligent manner by failing to keep a proper lookout, driving at an excessive rate of speed, and failing to timely brake.  Vallejo asserts that Anderson is an agent or employee of the City and, as such, the City is liable under the doctrine of respondeat superior. Vallejo further asserts that the City negligently entrusted the car to Anderson and that the City’s car experienced “brake failure” at the time of the accident.

In its answer, the City generally denies Vallejo’s allegations and asserts that it is entitled to governmental immunity from Vallejo’s claims under the Texas Tort Claims Act.[3]In his separate answer, Anderson also generally denies Vallejo’s allegations and invokes the “exceptions from and limitations on liability” set forth in the Tort Claims Act. Vallejo subsequently non-suited her claims against Anderson, and the trial court signed an Order on Partial Non-Suit, dismissing without prejudice Vallejo’s claims against Anderson. 

Shortly thereafter, the City filed its plea to the jurisdiction, arguing that because Vallejo had simultaneously brought suit against both it and Anderson, Vallejois“ immediately and forever barred from any suit or recovery against [the City] regarding the same subject-matter.”[4] The City also contends that even though Vallejo non-suited her claims against Anderson, any suit against him is “forever bar[red].”[5]

The trial court denied the City’s plea. 

Standard of Review

We review de novo a trial court’s ruling on a jurisdictional plea.  See Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 927 (Tex. 2007). When reviewing a trial court’s ruling on a challenge to its jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as well as any evidence in the record that is relevant to the jurisdictional issue.  City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We construe pleadings liberally in favor of the plaintiffs, look to the pleader’s intent, and determine whether the pleader has alleged facts affirmatively demonstrating the court’s jurisdiction.  Id.  Allegations found in pleadings may affirmatively demonstrate or negate the court’s jurisdiction.  City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). 

We review the trial court’s interpretation of a statute de novo. 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.  Id.; 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.”).  If the words of a statute are clear and unambiguous, we apply them according to their plain and common meaning.[6]Galbraith Eng’g Consultants, Inc., 290 S.W.3d at 867; City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).

Election of Remedies

In its sole issue, the City argues that the trial court erred in denying its plea to the jurisdiction because, by filing suit against both it and its employee regarding the same subject matter, Vallejo is “immediately and forever barred from any suit or recovery against [the City] regarding the same subject matter.”SeeTex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (Vernon 2011).

Governmental immunity exists to protect subdivisions of the State, including municipalities like the City, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).  We interpret statutory waivers of governmental immunity narrowly, as the legislature’s intent to waive immunity must be clear and unambiguous.  Id.; seeTex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2011).

The Texas Tort Claims Act provides a limited waiver of governmental immunity for certain suits against governmental entities.  SeeTex. Civ. Prac. & Rem. Code §§ 101.021, 101.023, 101.025 (Vernon 2011).  And it generally waives governmental immunity to the extent that liability arises from the “use of a motor-driven vehicle or motor-driven equipment” or from “a condition or use of tangible personal or real property.”  Id. § 101.021.   

The City does not dispute that section 101.021 generally waives its immunity for negligence claims like those brought by Vallejo for damages resulting from a car collision allegedly caused by a City employee.  Rather, the City argues that a plaintiff like Vallejo who simultaneously pleads claims against both the City and its employee regarding the same subject matter is barred from obtaining relief against either the City or its employee.   

Section 101.106, entitled “Election of Remedies,” provides, in full,

(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.

 

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

 

The City’s argument concerning the operation of the election-of-remedies provision is based upon language contained in the Texas Supreme Court’s opinion in Mission Consolidated Independent School District v. Garcia, wherein the court sought to “determine the scope of the Tort Claims Act’s election-of-remedies provision.”[7]  253 S.W.3d 653, 655 (Tex. 2008).  In Garcia, three school-district employees whose employment was terminated by the district sued for violations of the Texas Commission on Human Rights Act (“TCHRA”)[8] and for common-law intentional infliction of emotional distress.  Id. at 654–55.  The employees also sued the superintendent of the district for common-law claims of defamation, fraud, and negligent misrepresentation.  Id.  The district, citing section 101.106(b), filed a plea to the jurisdiction, arguing that the employees’ decision to sue both the district and its superintendent barred recovery against the district.  Id. at 655.  The trial court denied the district’s plea, and the court of appeals affirmed, reasoning that section 101.106 did not apply to the employees’ claims.  Id.  The court of appeals interpreted subsection (a) of section 101.106 “to only apply when [a] governmental unit alone is sued, subsection (b) to only apply when the employee alone is sued, and subsection (e) to apply when both are sued simultaneously.”  Id. at 657–58.  The court of appeals also interpreted subsection (e)’s reference to suits “filed under this chapter” to mean that section 101.106 applied only to suits for which the Tort Claims Act waived immunity.  Id. at 658.

 

The supreme court “disagree[d] with the court of appeals’ narrow interpretation,” and it discussed the potential application of both subsections (b) and (e) to the suit.  Id.  In regard to subsection (e),[9] the court concluded that because the Tort Claims Act is the “only, . . . limited[] avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be under the Tort Claims Act for purposes of section 101.106.”[10]Id. at 659 (citation omitted).  The court stated that if the district had filed, pursuant to subsection (e), a motion to dismiss the claims against the superintendent, he would have been entitled to dismissal of the employees’ suit against him.[11]Id.  The court also stated that “if the [district] had obtained [the superintendent’s] dismissal from the suit under subsection (e), all of [the employees’] tort claims against [the district] would [also have been] barred because . . . all tort theories of recovery alleged against a governmental unit are presumed to be “under the [Tort Claims Act].”[12]Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)).  In regard to the employees’ TCHRA claims against the district, the court explained that these discrimination claims did not constitute a “suit filed under this chapter” and “would not come within subsection (e)’s purview because the Tort Claims Act expressly provides that the remedies it authorizes ‘are in addition to any other legal remedies.’” Id. (citing Tex. Civ. Prac. & Rem. Code Ann.§ 101.003). 

 

The supreme court then turned to consider subsection (b), which the district argued operated to bar the employees’ “entire suit,” including the TCHRA claims, “because [the superintendent] was sued as well, which is all that subsection (b) requires.”  Id.  The court agreed that, “to the extent subsection (b) applies, it bars any suit against the governmental unit regarding the same subject matter, not just suits for which the Tort Claims Act waives immunity or those that allege common-law claims.”  Id.  The court then noted that, unlike subsections (a), (c), (e), and (f), subsection (b) does not contain the limiting phrase “under this chapter,” and, “by subsection (b)’s literal terms, it applies to ‘any suit’ brought against the governmental unit, provided the other subsection (b) requirements are met.”  Id. at 559–60.  Noting that subsection (b) expressly operates to bar suit or recovery against a governmental unit “unless the governmental unit consents,” the court concluded that because the legislature consented to suit under the TCHRA, the TCHRA claims would survive the application of subsection (b), provided the plaintiff met the procedures outlined in that statute.  Id.  

In summarizing its holding concerning the scope of section 101.106, the supreme court stated,

We hold that the Tort Claims Act’s election-of-remedies provision applies to bar Garcia’s common-law claims against the ISD, but does not bar her TCHRA claims.

 Id. at 660.

  

Based upon the above language in Garcia, governmental units, like the City, have argued that section 101.106 creates a “harsh” fatal-filing rule that immunizes both the governmental unit and its employee when a plaintiff, who has an otherwise valid immunity-waived tort claim, files suit against both.  Courts of appeals, in addressing these arguments, have endeavored to interpret the plain language of section 101.106 in a manner that is both consistent with our supreme court’s precedent and does not lead to absurd results.  See City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *5–10 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed); see alsoAmadi v. City of Houston, No. 14-10-01216-CV, 2011 WL 5099184, at *4–8 (Tex. App.—Houston [14th Dist.] Oct. 27, 2011, pet. filed); Barnum v. Ngakoue, No. 03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin Apr. 29, 2011, pet. filed); City of N. Richland Hills v. Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth 2011, pet. granted).

 

The City’s argument for a harsh fatal-filing rule is not entirely without merit considering certain language in the Garcia opinion.  However, in addition to the language in Garcia that favors the City’s argument, which we have detailed above, there is also language suggesting that the supreme court did not intend to interpret section 101.106 in such a way as to create a fatal-filing trap that would bar plaintiffs like Vallejo from court entirely.  For example, in discussing the general purposes of the election-of-remedies provision, the court stated that the “election scheme is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.”  Id. at 657 (emphasis added).  More significantly, the court stated,

 

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).

 

Id. (emphasis added).  In this passage, the court expressly recognized that a plaintiff, like Vallejo, who simultaneously files suit against a governmental unit and its employee for common law tort claims for which immunity has been waived under the Tort Claims Act is not left without any remedy merely as the result of the simultaneous filing.  See id.  This is the only reasonable interpretation of the election-of-remedies provision in the Tort Claims Act because it is actually in accord with the plain language used by the legislature:

(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.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (emphasis added).

 

Presented with the conflicting language in Garcia, we follow the precedent of our Court in Esparza, which is in accord with the plain language used by the legislature in section 101.106(e).  Accordingly, we hold that subsection (b) does not bar Vallejo from pursuing her common law tort claims against the City.  See id. § 101.106(b), (e);Esparza, 2011 WL 4925990, at *10.  We further hold that the trial court did not err in denying the City’s plea to the jurisdiction.[13]

 

We overrule the City’s sole issue.   

 

Conclusion

 

We affirm the order of the trial court.

                                                                    Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, concurring.

--------------------------------------------------------------------------------

FOOTNOTES:

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).

Sovereign immunity bars wrongful death suit by inmate's estate

Chief Justice Adele Hedges affirms dismissal of suit by survivors of inmate electrocuted by downed power line on prison grounds.

Smith v. TDCJ, No. ((Tex.App.- Houston -14th Dist.] Nov. 6, 2007)(Hedges)(governmental entity law, wrongful death, electrocuted inmate, TTCA, sovereign immunity bars claim)
Full style: Alice Smith, Individually and on behalf of Donald Ray Smith, Deceased v. Texas Department of Criminal Justice
Appeal from 412th District Court of Brazoria County (Hon. W. Edwin Denman)
Disposition: Order of Dismissal Affirmed

MEMORANDUM OPINION BY CHIEF JUSTICE ADELE HEDGES

In this wrongful death case, appellant challenges an order granting a plea to the jurisdiction in favor of the Texas Department of Criminal Justice, appellee. We affirm.

I. BACKGROUND

Donald Smith ("decedent"), was an inmate with the Texas Department of Criminal Justice ("TDCJ") and was assigned to a crew responsible for repairing power lines for the State. Decedent was trained and accredited to work on power lines while he was incarcerated at TDCJ.

On May 6, 2005, decedent was called out as part of a crew to repair a downed power line in a horse pasture on TDCJ's property. Decedent's supervisor, Clifford Guant, arrived at the scene around 5:00 p.m. to assess the damaged power line. The rest of the crew, which included supervisor Anthony Allen, inmate Lemons, and decedent, arrived around 5:50 p.m. in trucks equipped with the supplies necessary to repair the downed line. When the crew arrived, they were informed that the power lines were still energized and were told not to go near the line. The power line was hanging three feet off the ground in the open pasture, about 40 feet away from where the trucks were parked.

The crew was then told that the power would be shut off, and they began to unload equipment from the truck. Supervisor Guant notified the TDCJ unit that they were cutting the power. He then directed inmate Millard, another crew member, to pull the power switches. Decedent began unspooling wire from the truck into the open pasture. At this time, supervisor Allen turned his back on the crew to take a personal phone call. While unspooling the wire from the truck, decedent backed into the dangling power line that was still energized with 7200 volts of power. Decedent received an electric shock and, as a result, died three days later.

Alice Smith, decedent's mother, brought this suit individually and on behalf of his estate for wrongful death and survival damages. The trial court granted TDCJ's plea to the jurisdiction, dismissing the case with prejudice for lack of subject matter jurisdiction on the ground that appellant failed to allege facts demonstrating waiver of TDCJ's immunity from suit under the relevant provisions of the Texas Tort Claims Act (the "Act"). Appellant raises two issues in this appeal: (1) the trial court erred in dismissing the case because appellant's evidence raised a fact issue as to whether decedent had actual knowledge of the dangerous condition, a fact that would waive TDCJ's sovereign immunity; and (2) TDCJ was not entitled to an exclusion under the Act because the method by which TDCJ supervised decedent's work on the high voltage lines should be characterized as implementing policy, not a discretionary function of formulating policy.

II. ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). Governmental immunity from suit defeats subject matter jurisdiction. Dallas Area Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mogayzel v. Tex. Dept. of Transp., 66 S.W.3d 459, 463 (Tex. App.-Fort Worth 2001, pet. denied). In performing this review, we do not consider the merits of plaintiff's case, but focus instead on the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). The pleadings are to be construed in favor of the plaintiff, and the court must look to the pleader's intent. Brown, 80 S.W.3d at 555; Tex. Dept. of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App.-Fort Worth 2001, pet. denied). Nevertheless, a waiver of immunity must be clear and unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex. 2006). In sum, we determine whether the plaintiff has pleaded a claim for which a governmental unit has waived immunity by reading the pleadings broadly and the alleged waiver narrowly.

Here, the parties do not dispute that TDCJ is a governmental unit under the Act. Therefore, we will review appellant=s pleadings and jurisdictional evidence to determine if her claims fall within a waiver of immunity under the Act.

B. Waiver of Immunity Under the Act

In appellant's first issue, she alleges that the trial court erred in dismissing the case because her evidence raised a fact issue as to whether TDCJ waived immunity under the Act. Specifically, appellant argues that TDCJ waived its sovereign immunity under section 101.021(2) because: (1) the condition of the premises presented an unreasonable risk of harm to decedent, a licensee; (2) TDCJ, the landowner, knew of the dangerous condition; (3) decedent did not have actual knowledge of the hazardous condition; (4) TDCJ failed to exercise ordinary care to protect decedent from danger; and (5) TDCJ's failure to exercise ordinary care was the proximate cause of decedent's death. See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To support this argument, appellant relies on the deposition testimony of crew members stating that (1) decedent was called out by TDCJ to repair a downed power line energized with 7200 volts of power on its property; (2) decedent was told that the power was going to be cut by inmate Millard; (3) decedent waited a sufficient amount of time before backing into the downed power line; (4) inmate Millard only pulled the power on two switches; and (5) supervisors Allen and Guant knew that one line remained energized but failed to warn decedent. According to appellant, this evidence is sufficient to overcome TDCJ's plea to the jurisdiction because it raises a fact issue as to whether TDCJ waived immunity under section 101.021(2) of the Act.

Under the doctrine of sovereign immunity, a governmental unit is immune from suit and liability in the absence of a constitutional or statutory provision creating such liability. See Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.-San Antonio 1999, no pet.). The Act creates a limited waiver of sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). In order for immunity to be waived under the Act, the claim must arise under one of three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exclusions from waiver. Medrano, 989 S.W.2d at 144. The three specific areas of liability for which immunity has been waived are (1) injury caused by an employee's use of a motor-driven vehicle, (2) injury caused by a condition or use of tangible personal or real property, and (3) claims arising from premise defects. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021(1), 101.021(2), 101.022 (Vernon 2005); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.CHouston [1st Dist.] 1999, pet. denied).

Appellant's pleadings below and appeal before this Court does not reflect that this suit was prosecuted on an ordinary premise defect theory under section 101.022. See City of Baytown v. Townsend, 548 S.W.2d 935, 939 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). Therefore, appellant's only claim to waiver in the instant appeal is grounded in an injury arising from the condition of real property under section 101.021(2). We now examine the pleadings and jurisdictional evidence appellant offers to support her jurisdictional argument under 101.021(2).

If decedent's injury arose out of the condition of TDCJ's property, it owed decedent the same duty a private landowner owes a licensee. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2). An owner, such as TDCJ, must avoid injuring a licensee by willful, wanton, or grossly negligent conduct. See Payne, 838 S.W.2d at 237. However, when the owner has actual knowledge of a dangerous condition and the licensee does not, the owner's duty is to warn the licensee or make the premises reasonably safe. Id. The elements of proof required to establish liability in the instant case are (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner had actual knowledge of the condition; (3) the licensee did not have actual knowledge of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner's failure was a proximate cause of injury to the licensee. See id.

TDCJ does not dispute the first two elements of liability. However, the third element, that the licensee did not have actual knowledge of the dangerous condition, is key to appellant's first issue. Actual knowledge embraces those things which a reasonably diligent inquiry and means of information at hand would have disclosed. City of San Benito v. Cantu, 831 S.W.2d 416, 425 (Tex. App.-Corpus Christi 1992, no writ); see also Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26-27 (Tex. App.-Dallas 1988, writ denied) (stating that a licensee is also imputed with knowledge of those conditions perceptible to him, or the existence of which can be inferred from the facts within his present or past knowledge). We must now examine the pleadings and jurisdictional evidence to determine whether decedent had actual knowledge of the hazard.

The live power line was hanging three feet from the ground in an open horse pasture when decedent and the rest of his crew arrived. The crew was told that because the downed power line was still energized, they needed to stay away from it. This shows that each member of the crew, including decedent, had actual knowledge of the danger. Even if decedent believed that the power had been cut after he had actual knowledge of the danger, as alleged by appellant, appellant cites no controlling authority that allows an injured party to subsequently lose actual knowledge once that party has been made award of the dangerous condition. See Smith v. Radam, Inc., 51 S.W.3d 413, 415-16 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (stating that a reviewing court will not conduct an independent review of the record and applicable law to determine whether error complained of occurred when appellant fails to cite any controlling authority on that point of error). There were no affirmative representations of fact made by TDCJ that it was safe for decedent to make contact with the downed power line. Instead, decedent assumed that the condition of the property became safe within a matter of one minute after being informed that the power would be cut off. In fact, the usual and customary safety operation employed by TDCJ prior to working on a downed power line was to (1) notify the unit affected by the outage that power would be shut down, (2) cut the power, (3) check the power with a meter to verify the power was down, and (4) ground the conductors. On the day in question, decedent did not follow this procedure.

Crew members testified that they knew the downed line was still energized. If the danger of approaching the downed power line was apparent to supervisors Guant and Allen and inmate Lemons, then there is no reason to assume or believe that decedent, who was a trained lineman and had access to the same information, did not have actual knowledge of the same danger. The conspicuousness of the danger was apparent to all, including decedent. See Cantu, 831 S.W.2d at 425. Therefore, TDCJ was relieved of its duty to further warn or make safe the condition of the real property. Id. Because decedent had actual knowledge of the dangerous condition, and the record is void with evidence of willful, wanton, or grossly negligent conduct on behalf of TDCJ, we find that TDCJ did not breach its duty to decedent under section 101.021(2). Therefore, TDCJ did not waive its sovereign immunity under the Act. We overrule appellant's first issue.
Having concluded that TDCJ's sovereign immunity was not waived, we do not reach appellant's second issue addressing whether TDCJ's conduct fell under one of the Act's exclusions from waiver. Accordingly, we affirm the trial court's judgment.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed November 6, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).