City of Houston v. Kelvin Atkins ( 2012 )

Opinion issued June 21, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00190-CV
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THE CITY OF HOUSTON, Appellant
V.
KELVIN ATKINS, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2011-75339
MEMORANDUM OPINION
The City of Houston appeals the trial court’s interlocutory order denying its
plea to the jurisdiction.1 In its sole issue, the City 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 Summary
Kelvin Atkins sued the City of Houston (“the City”) and its employee,
Wayne Douglas Collins. Atkins alleged that he suffered personal injuries in a
motor vehicle accident involving Collins. Atkins alleged that the accident was
caused by Collins’ negligent operation of the motor vehicle Collins was driving.
Atkins asserted that, at the time of the accident, Collins was acting within the
course and scope of his employment with the City.
The City filed a plea to the jurisdiction seeking dismissal of Atkins’s claims
against it. In its plea, the City cited Tort Claims Act subsection 101.106(b), which
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
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2011).
2
consents.”2 The City asserted, “By filing suit against Collins regarding the same
subject matter, plaintiff perfected [the City’s] section 101.106(b) immunity,
defeating this Court’s subject-matter jurisdiction.”
A few days after the City filed its plea, Atkins non-suited his claims against
the City’s employee, Collins. Atkins amended his petition to name the City as the
only defendant.
The trial court denied the City’s plea to the jurisdiction. The City now
appeals the trial court’s order. In its sole issue, the City asserts that the trial court
erred in denying its plea to the jurisdiction because Tort Claims Act subsection
101.106(b) grants it immunity and bars any suit by Atkins against it arising from
the automobile accident with Collins.
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, 638–39 (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, 925 (Tex. App.—Dallas 2007,
2
See id. § 101.106(b) (Vernon 2011).
3
pet. denied). We also review a trial court’s interpretation of a statute de novo. See
Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).
Analysis
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.
The Torts Claim Act establishes a limited waiver of immunity and
authorizes suits to be brought against governmental units in certain defined
circumstances and with certain restrictions. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 101.001–.109 (Vernon 2011 & Vernon Supp. 2011); Tex. Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). With respect to a
statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver
narrowly, because the legislature’s intent to waive immunity must be clear and
unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX.
GOV’T CODE ANN. § 311.034 (Vernon 2005)). Relevant to this case, the Act
waives governmental immunity to the extent that liability arises from the “use of a
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motor-driven vehicle or motor-driven equipment.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021(1)(A) (Vernon 2011).
The City 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 Collins. Nonetheless, the City claims that,
under the procedural posture of this case, its immunity remains intact pursuant to
Tort Claims Act section 101.106.3
Section 101.106, entitled “Election of Remedies,” provides 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.
(c) The settlement of a claim arising under this chapter shall
immediately and forever bar the claimant from any suit against or
recovery from any employee of the same governmental unit regarding
the same subject matter.
3
The Supreme Court of Texas has stated that that “section 101.106 is an immunity
statute.” Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997). The supreme
court reiterated this position in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).
There, the court, citing Newman, stated that section 101.106 is a statute which
confers immunity. Id. at 371 n.9 (citing Newman, 960 S.W.2d at 623).
5
(d) A judgment against an employee of a governmental unit shall
immediately and forever bar the party obtaining the judgment from
any suit against or recovery from the governmental unit.
(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.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106.
The City argues that a plaintiff who sues both the governmental employee
and the governmental unit cannot maintain suit against either. The City contends
that if a plaintiff, such as Atkins, originally files suit against both a governmental
unit and its employee, on the governmental unit’s motion, the plaintiff’s claims
against the governmental unit must be dismissed under subsection (b), which
grants it immunity from suit. And, on the filing of the City’s motion, the employee
is also entitled to dismissal under subsection (e). Based on this interpretation, the
City asserts that, in this case, it was entitled to immunity and dismissal under
subsection (b).
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We have previously decided the question of statutory interpretation
presented in this case: whether subsection 101.106(b) grants a governmental unit,
such as the City, immunity from suit when the plaintiff initially sues both the
governmental unit and its employee for tort claims. In City of Houston v. Esparza,
we determined that subsection (b) does not grant the City immunity from suit—
thus requiring its dismissal—when the plaintiff sues both the City and its employee
in the original petition. No. 01–11–00046–CV, 2011 WL 4925990, at *10 (Tex.
App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g). Giving effect to
the legislature’s plain language and reading section 101.106’s provisions in
harmony, we explained that a plaintiff’s initial filing of suit against the City and its
employee invoked subsection (e), not subsection (b). See id. Such filing results in
the plaintiff’s involuntary election of the governmental unit as his exclusive
defendant, should the government, as in Esparza, choose to file a dismissal motion
on behalf of the employee. See id. We held that subsection (b) did not bar the
plaintiff’s claims against the City, and we affirmed the trial court’s denial of the
City’s dismissal motion.4 See id.
In sum, subsection (b) has no application when a plaintiff simultaneously
sues the governmental unit and its employee, and the plaintiff elects the unit as its
4
This interpretation is in accord with language in Mission Consolidated
Independent School District v. Garcia in which the Supreme Court of Texas
recognized that a governmental unit may be sued when the suit is filed against it
and its employee. 253 S.W.3d 653, 657 (Tex. 2008).
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chosen defendant. This is true regardless of whether the plaintiff’s claims are
dismissed by way of a governmental unit’s motion, as in Esparza, or, as in this
case, by non-suit of the employee.5 See id. Following our precedent in Esparza,
we conclude that subsection (b) does not provide immunity when a claimant sues
both a governmental unit and its employee. See id. at *4, 6. If he has otherwise
complied with the jurisdictional requisites of the Tort Claims Act, Atkins is not
barred by subsection (b) from pursuing his claims against the City. See id.
5
The City is critical of our opinion in Esparza. Since its issuance, we have relied
on and reaffirmed the reasoning of Esparza in a number of opinions. See, e.g.,
City of Hous. v. Vallejo, No. 01–11–00133–CV, 2012 WL 1881726, at *5 (Tex.
App.—Houston [1st Dist.] May 22, 2012, no pet. h.); City of Hous. v. McMahon,
No. 01–11–01037–CV, 2012 WL 1249567, at *4 (Tex. App.—Houston [1st Dist.]
Apr. 12, 2012, not pet. h.) (mem. op.); Metro. Transit Auth. v. Light, No. 01–11–
00747–CV, 2012 WL 252187, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 26,
2012, no pet.) (mem. op.); City of Hous. v. Tsaig, No. 01–11–00432–CV, 2012
WL 170606, at *3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, (no pet.) (mem.
op.); Tex. Dept. of Aging & Disability Servs. v. Johnson, No. 01–11–00526–CV,
2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, pet. filed)
(mem. op.); City of Hous. v. Marquez, No. 01–11–00493–CV, 2011 WL 6147772,
at *3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.); City of
Hous. v. McClain, No. 01–11–00194–CV, 2011 WL 6015697, at *2–3 (Tex.
App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.); City of Hous. v.
San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—
Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.). Here, we again reaffirm
Esparza and apply its holding.
We also note that two of our sister courts have relied on our reasoning in Esparza
to reject the same argument made by the City in this case. See, e.g., Tex. Tech
Univ. Health Scis. Ctr. v. Villagran, No. 07–11–0257–CV, 2012 WL 967366, at
*7 (Tex. App.—Amarillo Mar. 22, 2012, no pet. h.); Tex. Dept. of Pub. Safety v.
Deakyne, No. 04–11–00271–CV, 2012 WL 726916, at *7 (Tex. App.—San
Antonio Mar. 7, 2012, no pet. h.)
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We hold that the trial court properly denied the City’s plea to the
jurisdiction. We overrule the City’s sole issue.
Conclusion
We affirm the order of the trial court denying the City’s plea to the
jurisdiction.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
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