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 , Appellant s 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

. B ACKGROUND 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 Claim s 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 pursu ant 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.
S TANDARD OF R EVIEW Governmental immunity from suit defeats a trial court’s subject m atter 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

– 2 6 (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 2 28.
A NALYSIS
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 wa s 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). I n this case, the trial court granted the motion to dismiss Johnson

. After Johnson was dismissed , Metro further soug ht the dismissal of appellants’ claims against itself pursuant to section 101.106(b), which provides: The filing of a suit against any emp loyee 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 t he 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 an d 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 509918 4, 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 a nd personal injuries resulting from the negligent operation or use of a motor

- driven vehicle or motor

driven equipment); see also Rodriguez , 2011 WL 5244366, at *3 ; Amadi , 2011 WL4

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 Rodr iguez , 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 pu rsuant 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.