Memorandum Opinion filed January 5 , 201 2
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In The 

## Fourteenth Court of Appeals

NO. 14

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- 000 87

- CV

CITY OF HOUSTON , Appellant

V. LUIS CRESPO AMAZQUIT A, Appellee
On Appeal from the 281st District Court

Harris County, Texas Trial Court Cause No. 2010

- 39139



### M E M O R A N D U M O P I N I O N In this interlocutory appeal, the City of Houston appeals from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Luis Crespo Amazquita. 1 We affirm.
B ACKGROUND Appellee simultaneously sued the City, the Houston Police Department, and employee, Ryan Nolen, Jr., alleging that Nolen, a Houston police officer, was driving a

1 See T EX

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. C ODE A NN . § 51.014(a)(8) (West 2008) (permitting interlocutory appeals from a court order that grants or denies a plea to the jurisdiction by a governmental unit).2

vehicle owned by the City when he negligently ran a stop s ign and struck appellee’s van. Subsequently , appellee filed a First Amended Petition dropping his claims against the Houston Police Department and Nolen from the suit. The City later filed a plea to the jurisdiction, contending that appellee’s claims against it should be dismissed pursuant to
sect ion 101.106(b) of the election

- of

- remedies provision. See id. § 101.106(b). The trial court denied the City’s plea to the jurisdiction and this interlocutory appeal followed.
S TANDARD OF R EVIEW Governmental immunity from suit defeats a trial court’s subj ect 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) (per curiam); Mirand a , 133 S.W.3d at 228.
A NALYSIS The City asserts the trial court erred by denying its plea to the jurisdiction. Specifically, the City argues it is entitled to the dismissal of appellee ’s claims against it pursuant to section 101.106(b) because appellee made an irrevocable election to sue its employee, thus barring all claims against the City. Section 101.106(e ) 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.
T EX

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. C ODE A NN . § 101.106(e). If the governmental unit files a motion to dismiss the claims against its employee under section 101.106(e), the trial court must grant the motio n 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 2005,3

pet. denied). Appellee dismissed the claims against the City’s employee when appellee amended his petition. The City further sought the dismissal of appellee ’ s 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.
T EX

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. C ODE A NN . § 101.106(b). In its sole issue, the City argues that the govern mental 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, the City relies on Mission Consolidated Independent School D istrict 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 claim s.‖ 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 and its employee. See Amadi v. City of Houston , No. 14

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- 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); see also City of Houston v. Rodriguez , 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). 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. Here, as in Amadi and Rodriguez , the City consented to suit based on the alleged negligent use or operation of a motor

- driven vehicle. See T EX

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. C ODE A NN . § 101.021 (West 2011) (providing for a waiver of immunity for property damage and personal injuries resulting from the negligent operation or use of a motor

- driven4

vehicle or motor

- driven equipment); see also Rodriguez , 2011 WL 5244366, at *3; Amadi , 2011 WL 5099184, at *4. Moreover, Garcia is distinguishable because, unlike in this case, the governmental unit had not waived its immunity to suit for the plaintiffs’ tort claims. See Amadi , 2011 WL 5099184, at *5. Therefore, under the plain language of subsection (b), the simultaneous fili ng of suit against the City and Nolen does not bar appellee’s suit against the City because the City 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 subsect ion (b) did not bar the plaintiff’s claims against the City because the City’s immunity relative to the claims was waived under the T exas T ort C laims A ct ). Because the City was not entitled to dismissal pursuant to section 101.106(b), we overrule its sole issue and affirm the trial court’s judgment.
PER CURIAM

Panel consists of Justices Frost, Seymore, and Jamison

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