Reversed and Remanded and Memorandum Opinion filed December 22, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00413-CV

CEDRIC AUTHORLEE AND KENNETH PATTERSON, Appellants

V.

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2010-24026

M E M O R A N D U M O P I N I O N

In this appeal, appellants Cedric Authorlee and Kenneth Patterson appeal from the 

trial court’s order granting the plea to the jurisdiction filed by appellee Metropolitan 

Transit Authority of Harris County (Metro). We reverse and remand. 

BACKGROUND

Appellants simultaneously sued Metro and its employee, Steve Johnson, who was 

driving a Metro-owned bus, which collided with a vehicle occupied by appellants

resulting in personal injury to appellants. Metro filed a motion to dismiss its employee, 
2

Johnson, pursuant to the election-of-remedies provision of the Texas Tort Claims Act 

(TTCA). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The trial court granted 

Metro’s motion to dismiss Johnson. Metro subsequently filed a plea to the jurisdiction, 

contending that appellants’ claims against it should be dismissed pursuant to section 

101.106(b) of the election-of-remedies provision. See id. § 101.106(b). The trial court 

granted Metro’s plea to the jurisdiction and this appeal followed.

STANDARD OF REVIEW

Governmental immunity from suit defeats a trial court’s subject matter jurisdiction 

and is properly asserted in a plea to the jurisdiction. Gatesco, Inc. Ltd. v. City of 

Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex. 

Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). We review the trial court’s 

ruling on a plea to the jurisdiction under a de novo standard. City of Dallas v. Carbjal, 

324 S.W.3d 537, 538 (Tex. 2010); Miranda, 133 S.W.3d at 228. 

ANALYSIS

In its first issue, appellants assert that, following this court’s decisions in Amadi v. 

City of Houston,

1

and City of Houston v. Rodriguez,

2

the trial court erred in granting 

Metro’s plea to the jurisdiction. In the trial court, Metro argued that it was entitled to the 

dismissal of appellants’ claims against it pursuant to section 101.106(b). 

Section 101.106(e)—the provision under which Metro moved to dismiss Johnson

from this case—provides: 

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.

 

1 No. 14-10-01216-CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th 

Dist.] Oct. 27, 2011, no pet. h.) (op. on reh’g en banc).

2 No. 14-11-00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston [14th 

Dist.] Nov. 3, 2011, no pet. h.) (op. on reh’g).
3

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). Once the governmental unit files a 

motion to dismiss the claims against its employee under section 101.106(e), the trial court 

must grant the motion and dismiss the claims against the employee from the suit. 

Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005, 

pet. denied). In this case, the trial court granted the motion to dismiss Johnson. 

After Johnson was dismissed, Metro further sought the dismissal of appellants’

claims against itself pursuant to section 101.106(b), which provides: 

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.

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

Metro argues that the governmental unit has immunity from suit under subsection 

(b) when a plaintiff files suit simultaneously against the governmental unit and its 

employee regarding the same subject matter. Specifically, Metro relies on Mission 

Consolidated Independent School District v. Garcia, which states 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.‖ 253 S.W.3d 653, 659 (Tex. 2008). However, this court 

recently rejected these identical arguments in cases involving the simultaneous filing of 

suit against the City of Houston and its employee. See Amadi, 2011 WL 5099184, at *8;

Rodriguez, 2011 WL 5244366, at *2–3. 

Subsection (b) applies to bar a plaintiff’s recovery against the governmental unit 

only when the governmental unit has not consented to suit. Amadi, 2011 WL 5099184, at 

*4. In this case, as in Amadi and Rodriguez, Metro consented to suit based on the alleged 

negligent use or operation of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code 

Ann. § 101.021 (providing for a waiver of immunity for property damage and personal 

injuries resulting from the negligent operation or use of a motor-driven vehicle or motordriven equipment); see also Rodriguez, 2011 WL 5244366, at *3; Amadi, 2011 WL 
4

5099184, at *4. 

Therefore, under the plain language of subsection (b), the simultaneous filing of 

suit against Metro and Johnson does not bar appellants’ suit against Metro because Metro

has consented to suit in this case. See Amadi, 2011 WL 5099184, at *8; see also 

Rodriguez, 2011 WL 5244366, at *3 (applying Amadi and holding that subsection (b) did 

not bar the plaintiff’s claims against the City because the City’s immunity relative to the 

claims was waived under the TTCA). Because Metro was not entitled to dismissal 

pursuant to section 101.106(b), we sustain appellants’ first issue. 

Accordingly, we reverse the trial court’s judgment and remand for proceedings 

consistent with this opinion. 

PER CURIAM

Panel consists of Justices Frost, Seymore, and Jamison.