Motion for Rehearing Overruled; Opinion filed July 28, 2011, Withdrawn;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 appell ee Kelvin Johnson. 1 We affirm.

1 See T EX

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. & R EM

. 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 B ACKGROUND 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 T EX

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. C ODE A NN . § 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 Washi ngton . The City then filed a plea to the jurisdiction , contending that Johnson’s claims against it should be dismissed pursuant to sec tion 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

. S TANDARD OF R EVIEW 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.
A NALYSIS In its sole issue in this appeal, the City asserts that the trial court erred by denying its plea t o 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.
T EX

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. C ODE A NN . § 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. Dis t. 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 w ere dismissed from the suit is of no consequence to our disposition

. See A madi v. City of Houston , No. 14

- 10

- 01216

- CV,

— S.W.3d

— , 2011 WL 5099184 , at *4 (Tex. App.

— Housto n [14th Dist.] October 27 , 2011, no pet. h.) (op. on reh’g en banc) ( explain ing that the only clai ms 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

s ought the dismiss al 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 recove ry 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). 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 state s that ―to the extent4

sub section (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 co urt 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 T EX

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. C ODE A NN

. § 101.021 (West 2011) (providing for a waiver of immunity for property damage and per sonal 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 cla ims 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 judgme nt.

/s/ Sharon McCally , Justice Panel consists of Justices Frost, Jamison, and McCally.