City of Hous. v. Gunn

• Decision Date: 29 December 2011
• Docket Number: No. 01–11–00034–CV.,01–11–00034–CV.
• Parties: The CITY OF HOUSTON, Appellant v. Jessica GUNN, Appellee.
• Court: Texas Court of Appeals

389 S.W.3d 401

The CITY OF HOUSTON, Appellant

v.Jessica GUNN, Appellee.

No. 01–11–00034–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Dec. 29, 2011.

Judith L. Ramsey, The City of Houston Legal Department, Houston, TX, for The City of Houston.

Mark O. Midani, Midani, Hinkle & Cole, L.L.P., Houston, TX, for Jessica Gunn.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

LAURA CARTER HIGLEY, Justice.

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.²

We affirm.

Background

On September 11, 2009, Jessica Gunn sued the City of Houston and its employee, Kurt Rogers. Gunn alleged that Rogers had negligently operated a motor vehicle, causing a collision with her vehicle. Gunn asserted that, at the time of the collision, Rogers, a police officer, was acting within the course and scope of his employment. Gunn alleged that the City was liable for Rogers's conduct under the theory of respondeat superior.

The City and Rogers separately answered Gunn's suit. On December 9, 2010, Gunn filed her first amended petition in which she sued only the City. Rogers was no longer named as a defendant. Shortly thereafter, the City filed its plea to the jurisdiction asserting that Gunn's tort claims were barred by subsection 101.106(b) of the Tort Claims Act because Gunn had included Rogers in her original 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.” ³ The trial court denied the City's plea to the jurisdiction. The City 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 alsoTex. 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).

Plea to the Jurisdiction Based on Tort Claims Act Section 101.106(b)

In its sole issue, the City argues that the trial court erred in denying its plea to the jurisdiction because, by simultaneously filing suit against Rogers, its employee, regarding the same subject matter, Gunn triggered the application of subsection 101.106(b) of the Tort Claims Act. The City asserts that subsection (b) grants it immunity and bars any suit by Gunn against the City arising from the automobile collision between Gunn and Rogers.

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. SeeTex. 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” or from “a condition or use of tangible personal or real property.” SeeTex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2011).

The City does not dispute that section 101.021 generally waives its immunity for personal injury claims arising from an auto accident, such as that asserted by Gunn. Nonetheless, the City claims that, under the procedural posture of this case, its immunity remains intact pursuant to subsection 101.106(b) of the Tort Claims Act. Under that provision, the City contends that Gunn is forever barred from suing the City for damages arising from the car accident.

To understand subsection (b), it is helpful to read the provision in the context of section 101.106 as a whole. That statute, 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 governmentalunit regarding the same subject matter.

(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 (Vernon 2011).

The City contends that “where it applies, section 101.106 creates and grants immunity, separate and apart from (and independent of) common-law governmental immunity.” The City's contention in this regard finds support in the Supreme Court of Texas's decision, Newman v. Obersteller, in which the court stated that “section 101.106 is an immunity statute.” 960 S.W.2d 621, 623 (Tex.1997). Recently, 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).

It is also helpful to understand the legislative purpose behind the election-of remedies statute. The Supreme Court of Texas 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.

To reiterate, subsection 101.106(b)—the provision under which the City seeks dismissal—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 recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

Tex. Civ. Prac. & Rem.Code Ann. § 101.106(b).

The City asserts that subsection (b) applies to bar Gunn's suit against it because, at the time she filed her suit, Gunn chose to sue...