Motion for Rehearing Overruled; Opinion filed July 28, 2011, Withdrawn; 

Affirmed and Substitute Memorandum Opinion on Rehearing filed November 17,

2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00220-CV

CITY OF HOUSTON, Appellant

V.

KELVIN JOHNSON, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2010-43403

S U B S T I T U T E M E M O R A N D U M O P I N I O N ON REHEARING

We overrule the motion for rehearing, withdraw our opinion dated July 28, 2011, 

and issue the following substitute opinion. 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 Kelvin Johnson.1 We affirm. 

 

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 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

BACKGROUND

Johnson simultaneously sued the City and its employee, Marcia Renee 

Washington, for negligence alleging that the vehicle driven by Washington struck the 

vehicle in which Johnson was travelling. The City filed a motion to dismiss the claims 

against its employee, Washington, pursuant to the election-of-remedies provision of the 

Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) 

(West 2011). Johnson then filed a notice of non-suit of his cause of action against 

Washington without prejudice. The trial court ordered that Johnson’s cause of action 

against Washington be non-suited without prejudice. The trial court also subsequently

granted the motion to dismiss the claims against Washington. The City then filed a plea 

to the jurisdiction, contending that Johnson’s 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 denied the City’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) (per curiam); Miranda, 133 S.W.3d at 228. 

ANALYSIS

In its sole issue in this appeal, the City asserts that the trial court erred by denying 

its plea to the jurisdiction. Specifically, the City argues that it is entitled to the dismissal 

of Johnson’s claims against it pursuant to section 101.106(b) because Johnson made an 

irrevocable election to sue its employee, thus barring all claims against the City. 
3

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.

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 employees from the suit. 

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

pet. denied). Here, the trial court first granted the non-suit dismissing the claims against

Washington from the suit. However, the procedure by which the claims against

Washington were dismissed from the suit is of no consequence to our disposition. See 

Amadi v. City of Houston, No. 14-10-01216-CV, — S.W.3d —, 2011 WL 5099184, at *4 

(Tex. App.—Houston [14th Dist.] October 27, 2011, no pet. h.) (op. on reh’g en banc)

(explaining that the only claims remaining in the case were those against the City for 

which it consented to be sued regardless of the procedure used to dismiss the employee 

from the suit).

With the claims against Washington dismissed from the suit, the City further 

sought the dismissal of Johnson’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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b).

The City 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, the City relies on Mission 

Consolidated Independent School District v. Garcia, which states that ―to the extent 
4

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 and its employee. See Amadi, 2011 WL 5099184, at *8; 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 negligent 

use or operation of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 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-driven 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 filing of 

suit against the City and Washington does not bar Johnson’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 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 the City was not entitled to dismissal 

pursuant to section 101.106(b), we overrule its sole issue. Accordingly, we affirm the 

trial court’s judgment.

/s/ Sharon McCally, Justice

Panel consists of Justices Frost, Jamison, and McCally.