Opinion issued December 6 , 2012

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 11 - 00877 - CV

——————————— THE CITY OF HOUSTON , Appellant

V. GOVERNMENT EMPLOYEES INSURANCE COMPANY, A S SUBROGEE , Appellee
On Appeal from the County Civil Court at Law No. 4

Harris County, Texas Trial Court Ca se No. 976794


### MEMORANDUM OPINION In this interlocut ory appeal, t he City of Houston appeals from the trial court’s denial of its plea to the jurisdict ion on the negligence claims of2

Government Employees Insurance Company, as Subrogee of Erik Ustruk. 1 In its sole issue, the City contends that the trial court erred because it enjoys immunity pursuant to subsection (b) of the election

- of

- remedies provision of the Texas Tort Claims Act. 2 We affirm. Background GEICO sued the City and Donnell Kennedy , its employee, for Kennedy’s negligent operation of his vehicle , alleging that it’s insured, Ustruk, sustained property damage from an accident involving Kennedy. U nder the doctrine of respondeat superior , GEICO claimed Kennedy was acting in the course and scope of his employment and, as such, the City is liable for Kennedy’s negligent conduct. The trial court granted the City’s motion to dismiss all of GEICO’s claims against Kennedy pur suant to section 101.106(e) of the Tort Claims Act. 3 The City then filed a plea to the jurisdiction, contending that, because GEICO ’s suit against
1 See T EX . C IV . P RAC . & R EM . C ODE A NN . § 51.014(a)(8) ( West Supp. 2012 ) (permitti ng interlocutory appeals from cour t order that grants or denies plea to jurisd iction by governmental unit). 2 See T EX . C IV . P RAC . & R EM . C ODE A NN . § 101.106(b) (West 2011) (“ The filing of a suit against any employee of a governmental unit constit utes 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.”) 3 See T EX . C IV . P RAC . & R EM . C O DE A NN . § 101.106(e) (West 2011) (“ 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.”)3

Kennedy regarded the same subject matter as its claims against the City, all of GEICO’s tort claims against the City were barred by section 101.106(b) of the Tort Claims Act’s election

- of

- remedies provision
. 4 The trial court denied the City’s plea to the jurisdiction and this interlocutory appeal followed. Discussion A plea to the jurisdiction challenges the trial court’s subject

- matter jurisdiction , Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000) , t he existence of which is a question of law that we review de novo. State Dep’t of H ighways & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 20 02); Kamel v. Univ. of Tex. Health Sci. Ctr. , 333 S.W.3d 676, 681 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied)
. Subject

- matter jurisdiction is not to be presume d, rather, t he burden is on the plaintiff to allege facts affirmatively demonstrating it. See 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 unit 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 cons truction of the Tort Claims Act’ s election

- of

- remedies provision. S ee T EX . C IV . P RAC . & R EM . C ODE A NN . § 101.106 (West 2011 )
. In construing a statute, our primary objective is to

4 See id . § 101.106(b).4

determin e and give effect to the L egislature’s intent. Gonzalez , 82 S.W.3d at 327. In doing so, we “ read the statute as a whole and interpret i t to give effect to every part. ” Id. ( citation omitted ). With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpr et the waiver narrowly, as the L egislature’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 T EX . G OV ’ T C ODE A NN . § 311.034 (West 2005)). The City argues that a plaintiff who sues both a governmental employee and
a governmental unit cannot maintain suit against either. The City contends that if a plaintiff, such as GEICO, originally files suit against both a governmental unit and i ts employee, on the government ’s motion, the plaintiff’s claims against the governmental unit must be d ismissed under subsection (b), which grants it immunity from suit. T EX . C IV . P RAC . & R EM . C ODE A NN . § 101.106(b). The City further maintains that the employee , too, is entitled to dismissal under subsection (e). Id . § 101.106(e). Based on this interpre tation, the City asserts that, in this case, it was entitled to immunity and dismissal under subsection (b). Id
. § 101.106(b). This Court has previously decided the question of statutory interpr etation presented in this case i n City of Houston v. Esparz a . 369 S.W.3d 238 , 253

– 54 (Tex. App.

— Houston [1st Dist.] 2011, pet. filed) (op. on reh’g). There we5

determined that subsection (b) does not grant the City immunity from suit

— thus requiring its dismissal

— when the plaintiff sues both the City and its employee in the original petition. Se e id. at 249. G iving effect to the L egislature’s plain language and reading section 101.106’s provisions in harmony, we determined that a plaintiff’s initial filing of suit against the City and its employee invoked
su b section (e), not subsection (b), resulting in an election of the governmental unit
as the exclusive defendant, should the government al unit , as in Esparza , file a dismissal motion on behalf of the employee. See id. at 253. We held that subsection (b) did not bar the plaintiff’s claims against the City, and affirmed the trial court’s denial of the City’s dismissal motion. 5 See id. at 253

– 54
. As settled by Esparza , 6 we conclude that subsection (b) provide s no immunity to the governmental unit when both the governmental unit and its

5 This interpretation is in accord with language in Mission Consolidated Independent School District v. Garcia in which the Supreme Court of Texas recognized that a governmental unit may be sued when the suit is filed against it and its employee. 253 S.W.3d 653, 65 7 (Tex. 2008). 6 The City is critical of our opinion in Esparza . Since its issuance, we have relied on and reaffirmed the reasoning of Esparza in a number of opinions. See, e.g. , City of Hous. v. Atkins , No. 01

- 12

- 00190

- CV, 2012 WL 2357488 , at *3 (Tex. App.

— Houston [1st Dist.] June 21, 2012, pet. filed) (mem. op.); City of Hous. v. Vallejo , 371 S.W.3d 499, 505

– 06 (Tex. App.

— Houston [1st Dist.] 2012 , pet. filed); City of Hous. v. McMahon , No. 01

- 11

- 01037

- CV, 2012 WL 1249567, at *3

– 4 (Tex. App.

— Houston [1st Dist.] Apr. 12, 2012, pet. filed) (mem. op.); Metro. Transit Auth. v. Light , No. 01

- 11

- 00747

- CV, 2012 WL 252187, at *2

– 3 (Tex. App.

— Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.); City of Hous. v . Tsaig , No. 01

- 11

- 00432

- CV, 2012 WL 170606, at *2

– 3 (Tex. App.

— Houst on [1st Dist.] Jan. 19, 2012, pet . filed) (mem. op.); Tex. Dep’t of Aging & Disability Servs. v. Johnson , No. 01

- 11

- 00526

- CV, 2012 WL 27728, at *2 (Tex. App.

—6

employee are sued
. See id . at 249, 253

– 54
. If it has otherwise complied with the jurisdictional requisites of the Tort Claims Act, GEICO is not barred by subsection (b) from pursuing its claims against the City. See id
. at 253

– 54. Accordingly, w e hold that the trial court properly denied the City’s plea to the jurisdiction. We overrule the City’s sole issue. Conclusion We affirm the order of the trial court denying the City’s plea to the jurisdiction.

Jim Sharp Justice Panel consists of Justices Jennings, Higley, and Sharp.
Houston [1st Dist.] Jan. 5, 2 012, pet. filed) (mem. op.); City of Hous. v. Marquez , No. 01

- 11

- 00493

- CV, 2011 WL 6147772, at *3 (Tex. App.

— Houston [1st D ist.] Dec. 8, 2011, pet. filed ) (mem. op.); City of Hous. 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.); City of Hous. v. San Miguel , No. 01

- 10

- 01071

- CV, 2011 WL 5429048, at *2

– 3 (Tex. App.

— Houston [1st Dist.] Nov. 10, 2011, pet. filed ) (mem. op.). Here, we again reaffirm Esparza and apply its holding. We also note that two of our sister courts have relied on our reasoning in Esparza to reject the same argument made by the City in this case. See, e.g. , Tex. Tech Univ. Health Scis. Ctr. v. Villagran , 369 S.W.3d 523, 531 (Tex. App.

— Amarillo 2012, pet. filed); Tex. Dep’t of Pub. Safety v. Deakyne , 371 S.W.3d 303, 311 (Tex. App.

— San Antonio 2012, pet. filed).