Tex. Adjutant General's Office v. Ngakoue

• Decision Date: 30 August 2013
• Docket Number: No. 11–0686.,11–0686.
• Citation: 56 Tex. Sup. Ct. J. 1131,408 S.W.3d 350
• Parties: TEXAS ADJUTANT GENERAL'S OFFICE, Petitioner, v. Michele NGAKOUE, Respondent.
• Court: Texas Supreme Court

408 S.W.3d 350

56 Tex. Sup. Ct. J. 1131

TEXAS ADJUTANT GENERAL'S OFFICE, Petitioner,

v.Michele NGAKOUE, Respondent.

No. 11–0686.

Supreme Court of Texas.

Argued Dec. 4, 2012.

Delivered Aug. 30, 2013.

Daniel T. Hodge, First Asst. Attorney General, David C. Mattax, Director of DefenseLitigation, Office of the Attorney General, Greg W. Abbott, Attorney General of Texas, Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Rance L. Craft, William J. “Bill” Cobb III, Office of the Attorney General, Sandra Faye Kim, Assistant Attorney General of Texas, Austin, TX, for Texas Adjutant General's Office.

Adrienne Lea Redinger, Davis & Wilkinson, P.C., Chris Jackson, The Office of Chris Jackson, Austin, TX, for Michele Ngakoue.

Justice LEHRMANN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice GREEN, and Justice DEVINE joined.

Today we determine how various provisions of the Texas Tort Claims Act's [TTCA] election-of-remedies statute interact with one another. SeeTex. Civ. Prac. & Rem.Code § 101.106. The statute encourages, and in effect mandates, plaintiffs to pursue lawsuits against governmental units rather than their employees when the suit is based on the employee's conduct within the scope of employment. Section 101.106, in part, bars a suit against a governmental unit absent the unit's consent after a plaintiff sues the unit's employee regarding the same subject matter. However, it also provides that when an employee is sued for acts conducted within the general scope of employment, and suit could have been brought under the TTCA, then the suit is considered to have been filed against the governmental unit, not the employee. Accordingly, we hold that the plaintiff who brings such a suit against an employee is not barred from asserting a claim against the governmental employer. Further, while the Legislature has set out a procedure for the dismissal of a suit against an employee who was acting within the scope of employment, this procedure is immaterial to whether suit may be maintained against the proper defendant—the government. In this case, the employee was entitled to dismissal as a matter of law because the suit against him undisputedly arose from conduct within the general scope of employment, and suit against the governmental unit should proceed because the plaintiff was entitled to, and did, amend his pleadings to assert a TTCA claim against the government. Accordingly, we affirm the judgment of the court of appeals, although for reasons different from those expressed in its opinion.

I. Background

Michele Ngakoue sued Franklin Barnum for damages arising out of an automobile accident that occurred in Austin, Texas, alleging that Barnum's negligence caused the accident. At the time of the accident, Barnum was an employee of the Texas Adjutant General's Office (TAGO). Barnum filed a motion to dismiss himself from suit pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. That section provides in part that if suit is filed against a government employee in the employee's official capacity, then “[o]n 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” within thirty days. Tex. Civ. Prac. & Rem.Code § 101.106(f). Ngakoue filed an amended petition within thirty days entitled “Plaintiff's First Amended Petition & Motion to Dismiss as to Defendant Franklin Barnum,” which added TAGO as a defendant but failed in the body of the document to specifically reference or request Barnum's dismissal from the suit. The amended petition alleged that TAGO's sovereign immunity was waived under the TTCA because the claim arose “from the negligent acts and omissions of [Barnum] while [Barnum] was acting in the course and scope of his employment by [TAGO].” The trial court eventually denied Barnum's motion to dismiss.

TAGO subsequently filed a plea to the jurisdiction and motion to dismiss, claiming that Ngakoue failed to comply with the requirements of subsection (f) by not dismissing Barnum in his amended pleading, and arguing that suit against both Barnum and TAGO should be dismissed as a result of that failure. Specifically, TAGO argued that Barnum should be dismissed pursuant to subsection (f), while TAGO itself should be dismissed pursuant to subsection (b). See id. § 101.106(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.”). The trial court denied TAGO's plea and motion to dismiss, and both TAGO and Barnum timely appealed.

The court of appeals reversed the trial court's order denying Barnum's motion to dismiss. However, the court affirmed the denial of TAGO's plea to the jurisdiction, holding that Ngakoue's failure to comply with subsection (f) did not bar suit against TAGO. More specifically, the court of appeals held that: (1) Ngakoue failed to comply with subsection (f)'s procedural requirement by not properly dismissing Barnum within thirty days of Barnum's motion to dismiss; (2) nonetheless, that failure had no effect on the operation of subsection (b); and (3) subsection (b) does not bar suit against a governmental unit that otherwise falls within the waiver of immunity of the TTCA itself. Thus, because Ngakoue's suit against TAGO arose from its employee's use of a motor vehicle—ostensibly invoking a waiver of immunity under the TTCA—the court concluded that it was not barred by section 101.106(b). SeeTex. Civ. Prac. & Rem.Code § 101.021(1). We agree with the court of appeals that Barnum's motion to dismiss should have been granted. We also agree, though for different reasons, that TAGO's plea to the jurisdiction was properly denied.

II. The Texas Tort Claims Act and Section 101.106: Election of Remedies

“[N]o state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Hosner v. DeYoung, 1 Tex. 764, 769 (1847). This is because lawsuits against the state “hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purposes.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008) (citation and internal quotation marks omitted). Accordingly, the doctrine of sovereign immunity “bars suits against the state and its entities” unless the state consents by waiving immunity. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex.2012). “[T]he manner in which the government conveys its consent to suit is through the Constitution and state laws.” Garcia, 253 S.W.3d at 660. Thus, “ ‘it is the Legislature's sole province to waive or abrogate sovereign immunity.’ ” Id. (quoting Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 853 (Tex.2002)). Because any legislative waiver of immunity must be undertaken “by clear and unambiguous language,” statutory waivers of immunity are to be construed narrowly. Tex. Gov't Code § 311.034; see also Garcia, 253 S.W.3d at 655.

The TTCA provides a limited waiver of immunity for certain tort claims against the government. SeeTex. Civ. Prac. & Rem.Code §§ 101.001–.109. As is relevant here, the TTCA imposes liability on a governmental unit for the negligent acts of employees acting in the scope of employment if the injury claimed “arises from the operation or use of a motor-driven vehicle” and the employee would have been personally liable under Texas law. Id.§ 101.021(1). The TTCA also includes a section entitled “Election of Remedies,” which contains various provisions addressing different pleading scenarios and provides:

(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.

(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.

Id.§ 101.106. To resolve this case we must analyze the operation of and interaction between the provisions of section 101.106 to determine the consequences of both Ngakoue's election to file suit against Barnum and Ngakoue's actions in response to Barnum's motion to dismiss.

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