Opinion issued January 19, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00432-CV
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CITY of HOUSTON, Appellant
V.
SHAI TSAIG AND SAMI PEREZ, Appellees
On Appeal from 80th District Court
Harris County, Texas
Trial Court Cause No. 2011-13141
MEMORANDUM OPINION
After a car accident, Shai Tsaig and Sami Perez sued the City of Houston and its employee, James White, alleging that White negligently caused the accident. Tsaig and Perez dismissed White after the City moved to dismiss him under the Texas Tort Claims Act’s election-of-remedies provision. The City then filed a plea to the jurisdiction, claiming that Tsaig’s and Perez’s filing suit against White perfected the City’s statutory immunity from suit. The trial court denied the City’s plea to the jurisdiction, and the City brought this interlocutory appeal.[1] Because the trial court properly denied the City’s plea to the jurisdiction, we affirm.
BACKGROUND
Tsaig and Perez sued the City and its employee, White, alleging that White negligently operated a motor vehicle, causing a collision with the vehicle in which Tsaig and Perez were riding. The City moved to dismiss Tsaig’s and Perez’s claims against White under section 101.106(e) of the Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011). That provision states:
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) (West 2011). The following day, Tsaig and Perez filed an amended petition and Notice of Nonsuit against White. The City later filed a plea to the jurisdiction, asserting that section 101.106(b) of the Act bars Tsaig’s and Perez’s claims against the City. That provision states:
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 government unit consents.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b). The trial court denied the City’s plea to the jurisdiction. In its single issue, the City contends that the trial court erred in denying its plea to the jurisdiction. Specifically, the City asserts that because Tsaig and Perez filed suit against the City and White, Tsaig and Perez perfected the City’s section 101.106(b) immunity and Tsaig and Perez are forever barred from pursuing their claims against the City.
STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Whether a governmental entity is immune from suit is a question of subject-matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The existence of subject-matter jurisdiction is a question of law that we review de novo. State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681. We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681.
Section 101.106 of the Texas Tort Claims Act
A. The Parties’ Contentions
Citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) and Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), the City contends that because Tsaig and Perez sued both White and the City, Tsaig and Perez lost the opportunity to sue either. The City asserts that because Tsaig and Perez initially sued both White and the City, the City is immune from suit under section 101.106(b). The City asserts that the necessary consent to suit described in section 101.106(b) cannot be found within section 101.021 of the Act, which waives immunity for claims arising from the alleged negligence of a government employee in operating a motor vehicle, because, according to the City, when section 101.106(b) applies, it trumps the limited waiver of immunity in section 101.021. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011).
Tsaig and Perez disagree. They contend that because White was operating a motor vehicle in the course and scope of his employment at the time of the accident, section 101.021’s waiver of immunity for claims arising from negligence of operating a motor vehicle constitutes the consent described in section 101.106(b). See id. Thus, according to Tsaig and Perez, section 101.106(b) does not operate to bar their suit against the City.
B. City of Houston v. Esparza
This Court recently construed section 101.106 of the Texas Tort Claims Act in a case with facts similar to this case. City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.). In that case, the plaintiff, Esparza, filed suit against both the City of Houston and its employee, claiming that the employee was negligent in causing a car accident. Id. at *1. The City moved to dismiss the employee under section 101.106(e). Id. It also filed a plea to the jurisdiction asserting that Esparza’s claims against the City were barred by section 101.106(b) of the Act. Id. The trial court granted the motion to dismiss the employee, but denied the City’s plea to the jurisdiction. Id.
On rehearing, this Court affirmed the judgment of the trial court. We rejected the City’s contention that subsections (b) and (e) apply without reference to each other when a claimant sues both the government and its employee together, thus requiring dismissal of both defendants. Id. at *6. We concluded, instead, that when a claimant fails to elect between defendants and instead sues both the government unit and its employee, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed upon motion by either the government or the employee made on behalf of the employer. See Esparza, 2011 WL 4935990, at *10 (“By operation of subsection (e), Esparza’s filing of suit and the City’s motion to dismiss [the employee] resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than [the employee].”).
With regard to what constitutes “consent” under section 101.106(b), we held “a claimant may find ‘consent’ to suit within the Act’s limited waivers of immunity only if the claimant has satisfied the Act’s other jurisdictional requirements, including those set forth in the election-of-remedies provision.” Id. A claimant satisfies section 101.106 by electing—voluntarily or involuntarily—whether he will prosecute his claims against a governmental unit or its employee, forever forgoing prosecution against the other. Id.
C. Application of Section 101.106 to Tsaig’s and Perez’s Claims
Following Esparza, we reject the City’s contention that subsections (b) and (e) apply without reference to each other. Under section 101.106, Tsaig’s and Perez’s filing of suit against both White and the City invoked subsection (e). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). By operation of subsection (e), Tsaig’s and Perez’s filing of suit and the City’s motion to dismiss White resulted in a forced election: Tsaig and Perez elected to pursue their claims against the City rather than White. Id.; see Esparza, 2011 WL 4925990, at *10; see also Garcia, 253 S.W.3d at 657 (“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(e)”).
We do not adopt Tsaig’s and Perez’s contention that the limited waiver of immunity found in section 101.021, alone, is sufficient to find the City consented to suit within the meaning of section 101.106(b). See id. at *7–8. Rather, we conclude that the limited waiver of immunity found in section 101.021 may constitute the “consent” required by section 101.106(b), and section 101.106(b) therefore does not bar Tsaig and Perez from pursuing their claims against the City, their elected defendant, if they have satisfied the Act’s other jurisdictional requirements.[2] See Esparza, 2011 WL 4925990, at *10; See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b), (e).
CONCLUSION
We hold that the trial court properly denied the City’s plea to the jurisdiction under section 101.106(b) of the Texas Tort Claims Act. We therefore affirm the trial court’s order.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
[1] Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008) (authorizing
interlocutory appeal from denial of governmental unit’s plea to jurisdiction).
[2] The City does not challenge Tsaig’s and Perez’s compliance with any of the Texas Tort Claim Act’s jurisdictional requirements other than the election-of-remedies provision.