### NUMBER 13 - 11 - 00789 - CV 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

TEXAS PARKS AND WILDLIFE DEPARTMENT , Appellant,

v. ANA G. RUIZ , Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.



## MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant, the Texas Parks and Wildlife Department ( "the Department" ) , brings this interlocutory appeal with respect to the trial court ' s order denying its motion to dismiss pursuant to section 101.106(b) of the Texas Civil Practice and Remedies Code. See
T EX

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. C ODE A NN . § 101.106(b) (West 2011). By one issue, the2

Department claims that the suit brought by Ana G. Ruiz, appellee, is barred by section 101.106(b) because she originally filed suit against both the governmental employee and the governmental unit. We affirm. I. B ACKGROUND Appellee brought suit against the Department and its employee, Kevin C. McDonald , alleging that McDonald failed to yield the right

- of

- way, causing a collision and personal injur y to her. The Department mov ed to dismiss the case against McDonald pursuant to section 101.106(e) of the Civil Practice and Remedies Code , which provides: (e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immedia tely be dismissed on the filing of a motion by the governmental unit. T EX

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. C ODE A NN . § 101.106(e). Thereafter, appellee filed a notice of

non - suit with respect to her claim against McDonald. The court signed an order granting the non - suit. On October 17, 2010, the Department filed a motion to dismiss pursuant to section 101.106(b). That section provides: The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and imme diately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the government unit consents. Id. § 101.106(b). T he trial court denied the motion to dismiss. II. S TANDARD OF R EVIEW A p lea to the jurisdiction challenges the trial court ' s subject

- matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr ., 333 S.W.3d 676, 681 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied). Whether a governmental entity is immune from suit is a question of3

subject

- matter jurisdiction. Tex. Dep ' t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). The existence of subject

- matter jurisdiction is a question of law that we review de

novo. State Dep ' t of Hwys. & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002); Kamel , 333 S.W.3d at 681. We may not presume the existence of subject

- matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demon strating it. Tex. Ass '

n of Bus. v. Tex. Air Control Bd ., 852 S.W.2d 440, 443

– 44, 446 (Tex. 1993); Kamel , 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff ' s pleadings and th e evidence pertinent to the jurisdictional inquiry. C ou nty of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681. The resolution of this case requires statutory construction. We construe a statute to give effect to legislative int ent. State v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002); Amadi v. City of Houston , 369 S.W.3d 254, 256 Tex. App.

— Houston [14th Dist.] 2011, pet. filed) (en banc). The statute should be read as a whole and be interpreted to give effect to every part. Gonz alez , 82 S.W.3d at 327. The question before us is whether the Department is entitled to dismissal pursuant to section 101.106(b) of the Texas Civil Practice and Remedies Code because of its allegation that appellee made an irrevocable election to sue both the employee and the governmental entity. III. A NALYSIS By way of background, the Texas Tort Claims Act provides a limited waiver of immunity for certain suits against governmental units. T EX

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. §§ 101.001

– .109. (West 2011). With respect to the facts at issue here, the Tort Claims4

Act provides that immunity is waived to the extent that liability arises from the “ use of a
motor
- driven vehicle or motor

- driven equipment ” by an employee acting within the course and scope of his employment or from “ a condition or use of tangible personal or real property. ” Id

. § 101.021. The Department argues in its issue that its motion to dismiss should hav e been granted because appellee sued both the governmental unit and its employee in the same suit , and supreme court authority requires that a plaintiff must decide to sue either the employee or the entity before filing suit. See Mission Consol

. I.S.D. v. Garcia , 253 S.W.3d 653, 655 (Tex. 2008). The Department relies upon language in Missi on Consolidated that states , “ 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

. at 659. The Department urges that sections (b) and (e) apply without reference to one another when a claimant sues both the government and its employee together, requiring both defendants to be dismissed. Importantly, s ubsection 101.106(b) is qualified by a consent exception: it bars suit against a governmental unit unless “ the governmental unit consents. ” Id

. § 101.106(b). Appellee argue s that the claims against the governmental entity survive because there is a waiver of immunity; the government con sented to suit through the Tor t Claims Act. 1

1 In City of Corpus Christi v. Eby , No. 13

- 09

- 205, 2011 WL 1437002 (Tex. App.

— Corpus Christi, Apr. 14, 2011, no pet.) (mem. op.), we reversed the denial of a motion to dismiss holding that the plaintiff did not demonstrate a waiver of immunity. In Eby , all of the claims were for intentional to rts, and thus Eby failed to demonstrate a waiver of the City’s immunity from suit.5

Some of our sister courts have addressed this issue and agree with the propositions set forth by the appellee here. For example, in Amadi v. City of Houston , the Fourteenth Court of Appeals addressed this pre cise issue. See Amadi , 369 S.W

. 3d 254 (Tex. App.

— Houston [14th Dist.] 2011, pet. filed). As in this case, Amadi sued both the City of Houston and its employee, alleging negligent operation of a motor vehicle. Id

. at 256

. The City filed a plea to the jurisdiction alleging that Amadi ' s tort claims were barred by section 101.106(b) of the Tort Claims Act because plaintiff included both the employee and the City in her original petition. Id

. In its plea, the City claimed t hat Amadi was barred from suing or recovering . Id. Amadi countered that su bsection (e), not (b), applied. Id. at 259. That court concluded that section 101.106(b) operated “ to bar a plaintiff ' s recovery against the governmental unit when the plaintiff h as elected to sue only a government employee for the same subject matter. ” Id . The Amadi C ourt further determined: “ But this bar applies only when the governmental unit has not consented to suit. ” Id. The Amadi court further opined that the Tort Claim s Act expressly waives immunity when liability arises from a governmental employee ' s use of a motor vehicle in the course and scope of employment. Id. The court held that Amadi ' s claims were not barred because the City consented to suit for the tort clai ms at issue there. Id. The Amadi C ourt noted, and we agree, that Mission Consolidated is distinguishable. Id. at 260; see Mission Consolidated , 253 S.W.3d at 654. In Mission Consolidated

, the plaintiffs sued for violations of the Texas Commission on Human Rights Act ( “ TCHRA ” ) , and raised other common

- law claims that did not fit within the purview of6

the Tort Claims Act ' s limited waiver of immunity. See Mission Consolidated , 253 S.W.3d
at 654. Here, as in Amadi , however, the claims, in fact, do fit within the limited waiver of immunity. See A madi , 369 S.W.3d at 262. The Amadi C ourt ultimately concluded that the government explicitly consented to suit through the Tort Claims Act because l iability arose from the use of a motor driven vehicle or motor

- driven equipment. Id

. ; see T EX

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. C ODE A NN . § 101.021. Section 101.106(b), by its plain language, does not bar suit because the government entity has consented to suit. We agree with the Amadi court ' s reasoning. The Third Court of Appeals , in Barnum v. Ngakoue , reached a similar result. See Nos . 03

- 09

- 00086

- CV, 03

- 09

- 00087

- CV, 2011 WL 1642179 (Tex. App.

— Austin, Apr. 29, 2011, pet. granted). In Barnum , the appellate court concluded that the governmental employer’s motion was properly denied. Id . at *11 . The court stated: “This suit stems from a car accident between Ngakoue and one of the Adjutant General’s employees, and the legislature has expressly waived sovereign immunity in these circumstances. See id . Thus under Mission Consolidated , the legislature has consented to suit in these circum stances and the ‘forever’ bar under subsection 101.106(b) does not apply.” Id

. Recently, in City of Houston v. Esparza , the First Court of Appeals reached a similar result utilizing different reasoning. See 369 S.W.3d 238 (Tex. App.

— Houston [1st Dist.] 2011, pet. filed ). In Esparza, the plaintiff sued both the City and its employee. Id . at 242. The City asserted that section 101.106 requires a claimant to sue either the City or employee and the claimant who sues both loses the opportunity to sue eithe r.7

The City argued that “ consent , ” within the meaning of section 101.106(b), must be a waiver of immunity independent of the Tort Claims Act. Id . at 245. Unlike Amadi, the Esparza C ourt interpreted section (b) ' s consent exception to permit “ a claimant to bring a suit against a governmental unit only if the claimant has complied with all of the authorizing statute's jurisdictional requirements for bringing suit. ” Id. at 249. The Esparza Court further noted that “ for claims brought under the Tort Claims Act, the claimant must meet all the Act ' s jurisdictional constraints. ” Id. The Esparza C ourt disagreed with Amadi and others to the extent that the limited waivers of immunity alone establish a government ' s consent to suit. Se e id. at 251

. The Esparza C ourt, following Mission Consolidated , determined that like the TCHRA, the Tort Claims Act prescribes certain procedures that a claimant must comply with in order to come within the Act ' s waiver of immunity. Id. The court ultimately concluded that by operation of subsection (e) , Esparza was forced to elect and chose to pursue the claims against the City rather than the employee. As such, the claim against the City was not barred as long as the other jurisdictional requisites are met. Id

. at 253

. The Esparza C ourt, too, upheld the denial of the City ' s plea to the jurisdiction. Id

. at 254 ;

s ee also Tex. Dep’t of Public Safety v. Deakyne, 371 S.W.3d 303, 311 (Tex. App.

— San Antonio 2012, pet. filed) (holding that “ when a plaintiff sues both the governme ntal unit and its employee, and the governmental unit moves to dismiss its employee under section 101.106(e), the governmental unit becomes the elected defendant, the employee becomes the non

- elected defendant, and subsection (a) immunizes the employee fro m suit or recovery; the governmental unit cannot then assert subsection (b)'s immunit y for8

the non

- elected defendant.” ); T ex. Tech Univ

. Health Sciences Ctr. v. Villagran , 369 S.W.3d 523, 531 (Tex. App.

— Amarillo 2012, pet. filed)(holding that when suit is filed against both government al unit and employee, t he governmental unit cannot use two subsections in the election of remedies provision to require dismissal of the entire suit ); Tex. Parks & Wildlife Dept. v. Franklin , No. 09

- 12

- 00056

- CV, 2012 WL 5289359 at *
2 (Tex. App.

— Beaumont, Oct

. 25, 2012, no pet.) (mem.op) (agreeing with the San Antonio Court’s holding in Deakyne ); see also Tex. Dept. of Pub. Safety v Galvan , No. 13

- 11

- 00395 CV, 2013 WL 78546 at *4 ( Tex. App.

— Corpus Christi Feb. 28, 2013, no pet.) ( mem. op.) (following Dea kyne )

. Here, because there was no challenge made to the jurisdictional prerequisites, we do not decide the precise issue determined in Esparza . However, we do follow the analyse s discussed by the Houston , Austin, San Antonio, Amar illo, and Beaumont courts to the extent applicable and hold that the trial court did not err in denying the plea to the jurisdiction

. We overrule the Department’s issue. IV. C ONCLUSION We affirm the trial court ' s order denying the plea to the jurisdiction.

GREGORY T. PERKES Justice Delivered and filed the 21st day of March , 201 3

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