Laura Carter Higley

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 958237

MEMORANDUM OPINION

Metropolitan Transit Authority of Harris County ("Metro") appeals the trial court's interlocutory order denying its plea to the jurisdiction. In its sole issue, Metro contends that the trial court erred in denying its plea because it has immunity pursuant to subsection (b) of the election-of-remedies provision of the Texas Tort Claims Act.

We affirm.

Background

On March 17, 2010, Emilia Roque Baltazar sued Metro. Baltazar alleged that, while a passenger on a Metro bus, she suffered personal injuries when the bus came to a sudden stop, and she fell. The bus was driven by Metro employee, Michael Taylor. Baltazar asserted that Taylor, while acting in the course and scope of his employment, negligently operated the bus, causing her injuries. On February 17, 2011, Baltazar filed a first amended petition adding Taylor as a defendant in addition to Metro. On March 24, 2011, Metro filed a motion to dismiss asserting,

Under §101.106(e) of the Texas Tort Claims Act [] "[i]f a suit is filed under this chapter against both a governmental unit and any of its employees, the employee shall immediately be dismissed on the filing of a motion by the governmental unit." Accordingly, METRO files this motion seeking this Court to dismiss Plaintiff's claims against Defendant Michael A. Taylor, because it lacks jurisdiction over those claims.

Three weeks later, and before the trial court ruled on Metro's dismissal motion, Baltazar filed his second amended petition, omitting Taylor as a defendant. As she had done when she originally filed suit, Baltazar named Metro as the only defendant.

Shortly thereafter, Metro filed a plea to the jurisdiction. It asserted that Baltazar's tort claims against it were barred by Tort Claims Act subsection 101.106(b) because Baltazar had added Taylor as a defendant in her first amended petition. Subsection (b) provides that the "filing of a suit against any employee of a governmental unit . . . 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." In its plea, Metro asserted, "[Baltazar] filed this suit against METRO and subsequently its employee, Taylor, regarding the same subject matter. At such time, as [Baltazar] filed suit against Taylor, METRO's governmental immunity from suit was perfected as stated in l01.106(b)."

Baltazar responded to the plea by pointing to Tort Claims Act subsection 101.106(a), which provides,

The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

Citing this provision, Baltazar asserted that when she initially filed suit against Metro, she made an "irrevocable election" under subsection 101.106(a), choosing Metro as her defendant, not Taylor. Because the election was irrevocable, Baltazar argued that her addition of Taylor in her first amended petition had no effect; that is, Metro remained her elected defendant, and subsection 101.106(b) did not apply.

The trial court denied Metro's plea to the jurisdiction. Metro appeals the trial court's order.

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. See 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 de novo a trial court's ruling on a jurisdictional plea. Miranda, 133 S.W.3d at 226; see Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 927 (Tex. App.—Dallas 2007, pet. denied). The issue presented in this appeal requires this Court to interpret section 101.106 of the Tort Claims Act. "The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the legislature's intent." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).

In construing statutes, our primary objective is to give effect to the legislature's intent as expressed in the language of the statute. Galbraith Eng'g Consultants, 290 S.W.3d at 867; see also TEX. GOV'T CODE ANN. § 312.005 (Vernon 2005) ("In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy."). "Where text is clear, text is determinative of that intent." Entergy Gulf States, 282 S.W.3d at 437. "This general rule applies unless enforcing the plain language of the statute as written would produce absurd results." Id. We presume the legislature intended a just and reasonable result when it enacted the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).

Discussion

In its sole issue, Metro argues that the trial court erred in denying its plea to the jurisdiction because Baltazar triggered the application of Tort Claims Act subsection 101.106(b) when she sued both Metro and Taylor in her first amended petition. Metro asserts that subsection (b) grants it immunity and bars any suit by Baltazar against Metro arising from her alleged fall on the bus.

Sovereign and governmental immunity exist to protect the State and its political subdivisions from lawsuits and liability for money damages because such lawsuits hamper governmental functions by interfering with the appropriate use of tax resources. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Even so, the State, and likewise its political subdivisions, may be sued when the legislature has statutorily waived immunity. See id. We interpret statutory waivers of immunity narrowly, and the legislature's intent to waive immunity must be clear and unambiguous. Id. (citing TEX. GOV'T CODE ANN. § 311.034).

The Torts Claim Act establishes a limited waiver of immunity and authorizes suits to be brought against governmental units in certain narrowly-defined circumstances and with certain restrictions. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-009 (Vernon 2011); Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Relevant to this case, the Act waives governmental immunity to the extent that liability arises from the "use of a motor-driven vehicle or motor-driven equipment." See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A).

Metro does not presently dispute that section 101.021 generally waives its immunity for personal injury claims arising from an accident involving the use of a motor vehicle, such as that asserted by Baltazar. Nonetheless, Metro claims that, under the procedural posture of this case, its immunity remains intact pursuant to subsection Tort Claims Act 101.106(b). Under that provision, Metro contends that Baltazar is forever barred from suing Metro for damages arising from her fall on the bus because she added Taylor to her suit in her first amended petition. As she did in the trial court, Baltazar asserts that, under subsection 101.106(a), she elected to sue Metro when she filed suit and that election is irrevocable. She implicitly concedes that it was improper for her to add Taylor as a defendant in her first amended petition.

Section 101.106, entitled "Election of Remedies," provides, in relevant part, as follows:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) 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.
. . . .
(e) 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.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

The Supreme Court of Texas has stated that the legislature enacted the current version of section 101.106 "to force a plaintiff to decide at the outset whether [a governmental] employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." Garcia, 253 S.W.3d at 657. "By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs." Id.; see Alexander v. Walker, No. 01-10-00147-CV, 2011 WL 2500482, at *4 (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet.) (stating that "[t]he plain language of [sections 101.106(a) and (b)] suggests that the legislature intended for the plaintiff's election to occur when the plaintiff first files suit.").

Subsections 101.106(a) and (b) operate as mirror provisions of one another. See City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *9 (Tex. App.—Houston [1st Dist.] October 7, 2011, no pet. h.) (op. on reh'g); see also Alexander, 2011 WL 2500482, at *3. When a claimant elects to sue a governmental unit instead of its employee, subsection (a) immediately and forever bars the claimant from bringing common law tort claims regarding that subject matter against its employees. Esparza, 2011 WL 4925990, at *9 (citing Kamel v. Univ. of Tex. Health Ctr., 333 S.W.3d 676, 687 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); see Zimmerman v. Anaya, 2011 WL 1234685, at *2-3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. denied) (holding that when claimant originally sued governmental unit and later added employee as defendant, employee was entitled to dismissal under subsection (a)). "Concordantly, under . . . subsection (b), once a claimant elects to sue a government employee instead of its governmental employer, subsection (b) immediately and forever bars the claimant from bringing common law tort claims regarding that subject matter against the employer."See Esparza, 2011 WL 4925990, at *9 (footnotes omitted); see also Alexander, 2011 WL 2500482, at *3.

We agree with Baltazar that subsection (a) applies here, not subsection (b). By originally filing suit against Metro alone, Baltazar irrevocably elected Metro as her chosen defendant, forever foregoing any common law tort claims against Taylor arising from her fall on the bus. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a); see Esparza, 2011 WL 4925990, at *5. Once suit is filed against a governmental unit, a claimant is not permitted to change targets to the employee. See Hintz, 305 S.W.3d at 769 (stating, "[O]nce the plaintiff makes an 'irrevocable election' by suing only the employer, there is no statutory mechanism to change targets and sue the employee instead."). It was not appropriate for Baltazar to add Taylor as a defendant in her first amended petition, and she properly non-suited him in her second amended petition. See id. (likening effect of provisions of section 101.106 to a "one-way door" that operates to remove employee from suit, while permitting suit to be maintained against government employer and stating that such interpretation "comports with the legislature's goal to address efforts to circumvent the Tort Claims Act's limits by litigants who sued governmental employees individually instead of their governmental employers"). It follows that subsection (b) has no application to this case.

We conclude that, when she initially sued Metro, Baltazar satisfied the requisites of the election-of-remedies provision by irrevocably electing Metro as her defendant under subsection 101.106(a).See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a); see also Esparza, 2011 WL 4925990, at *10. We hold that, if she has otherwise complied with the jurisdictional requisites of the Tort Claims Act, Baltazar is not barred from pursuing her claims against Metro, her elected defendant.See id. The trial court properly denied Metro's plea to the jurisdiction.

We overrule Metro's sole issue.

Conclusion

We affirm the order of the trial court denying Metro's plea to the jurisdiction.

Laura Carter Higley

Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.