Opinion issued January 5, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00526-CV

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Texas Department of Aging and Disability Services a/k/a Richmond State Supported Living Center, Appellant

V.

Pamela Johnson, Guardian of the Person and Estate of Gerald Carr, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 09-DCV-177311

MEMORANDUM OPINION

In this interlocutory appeal,[1] we apply the election-of-remedies provision of the Texas Tort Claims Act to a suit brought against both a governmental unit and its employee driver.  Pamela Johnson sued the Texas Department of Aging and Disability Services (“DADS”) and its employee, Brittany Porter, asserting tort claims on behalf of Gerald Carr. Johnson alleges that Porter’s negligence proximately caused injuries to Carr when he fell out of a DADS van while it travelled along Highway 59.  DADS filed a plea to the jurisdiction and moved to dismiss the action against it, relying on section 101.106(b) of the Texas Tort Claims Act.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2010).  The trial court denied DADS’s plea.  On appeal, DADS contends that the trial court erred in doing so.  In accord with our decision in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *1 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed), we conclude that section 101.106(b) does not bar Johnson’s claims against DADS.  We therefore affirm the trial court’s order. 

Background

Johnson sued DADS and Porter together.  Johnson alleges that Porter’s negligence proximately caused injuries to Carr after Carr fell from a fifteen-person passenger van onto U.S. Highway 59.  DADS’s plea to the jurisdiction asserts that the Texas Tort Claims Act’s election‑of-remedies provision bars Johnson’s claims against it, because by suing both DADS and its employee, Johnson irrevocably elected to sue neither.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. 

Discussion

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). 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. 

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). Determination of that issue here turns on construction of the Tort Claims Act’s election-of-remedies provision.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.  Gonzalez, 82 S.W.3d at 327.  “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’” Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West 2005)).

Analysis

DADS contends that Johnson has failed to comply with the election‑of‑remedies provision because she sued both DADS and its employee together.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Relying on Mission Consol. Indep. Sch. Dist. v. Garcia, DADS asserts that the provision requires Johnson to sue either DADS or its employee, and a claimant who sues both loses the opportunity to sue DADS under section 101.106(b).  See Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Johnson responds that section 101.106(b) is inapplicable to her suit.  We agree.

 Shortly after DADS appealed, this Court issued its opinion on rehearing in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed).  Esparza rejects DADS’s contention that 101.106(b) bars a suit against a governmental unit when the suit is originally filed against both the governmental unit and its employee.  Id. at *4. Esparza reasoned that requiring dismissal when a plaintiff sues both the governmental unit and its employee would render subsection (e) of the election‑of‑remedies provision “superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent.” Id. at *6 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)).  Rather, filing a suit against both the governmental unit and its employee invokes subsection (e) and results in an involuntary election of the governmental unit as the exclusive defendant, should the government or its employee choose to file a plea on behalf of the employee.  Id.  Esparza concluded that “[w]hile a claimant who erroneously fails to make an election has an election foisted upon her by operation of the statute, her inartful drafting does not, alone, bar her claims against both the employee and the employer.”  Id. at *6.

In accord with our precedent in Esparza, we hold that subsection (b) does not provide immunity when a claimant sues both a governmental unit and its employee.  Rather, subsection (e) addresses instances where a claimant simultaneously sues the governmental unit and its employee.  Esparza, 2011 WL 4925990, at *4; see Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).   Under subsection (e), the government may move to dismiss claims brought against its employee; it may not, however, move to dismiss the governmental unit from the suit solely on the ground that both it and the employee were sued together.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).  DADS did not move to dismiss Johnson’s claims against Porter under subsection (e), the avenue for election‑of‑remedies when both the government and the individual are sued for the same tort.  See Esparza, 2011 WL 4925990, at *4.  The Tort Claims Act provides other avenues by which a governmental unit may challenge the jurisdiction of a claim brought against it.  The election-of-remedies provision of the Act is merely one of those avenues, but DADS has not yet asserted any other basis for a jurisdictional plea.  Because DADS’s jurisdictional plea does not comport with the application of 101.106 election-of-remedies provision, the trial court properly denied it. See Garcia, 253 S.W.3d at 657 (stating that under section 101.106, “recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).”); see also City of Arlington v. Randall, 301 S.W.3d 896, 902–03 (Tex. App.—Fort Worth 2009, pet. denied) (same). 

Conclusion

          We hold that the trial court properly denied DADS’s plea to the jurisdiction.  We therefore affirm the order of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Justices Bland, Sharp, and Huddle.

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[1]           Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2010).