Deputy Corey Alexander and Sergeant Jimmie Cook v. April Walker
355 S.W.3d 709
Tex. App.2011Background
- Walker sued Harris County Sheriff’s Department Deputy Corey Alexander and Sergeant Jimmie Cook in state court for assault, conspiracy, slander, false arrest, false imprisonment, and malicious prosecution related to January 2008 and July 2008 incidents.
- Walker then filed a federal suit against Harris County based on vicarious liability and §1983/1988 claims, pursuing additional theories against the County.
- The officers moved for traditional summary judgment under §101.106(a),(e)–(f), arguing the election of remedies barred Walker’s claims.
- The trial court denied the motion; on appeal, the panel granted rehearing and reaffirmed denial, holding §101.106(b) governs because Walker sued officers first.
- The court rejected application of §101.106(a) to bar the claim after Walker filed the federal suit, and noted Franka v. Velasquez does not apply to this case.
- The opinion clarifies that Walker irrevocably elected to sue the officers individually under §101.106(b), barring a suit against Harris County unless the statutory exceptions apply, and upholds the trial court’s denial of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §101.106(b) governs when plaintiff sues individual employees first | Walker elected to sue officers first, triggering §101.106(b) | §101.106(a) would bar later suit against County; election controlled by order of filing | §101.106(b) controls; election bars County absent consent or §101.106(f) applicability |
| Whether §101.106(e) or (f) exceptions apply here | Exceptions could permit switching or continued action against County | No proof that (e) or (f) applies to compel switching | Neither §101.106(e) nor §101.106(f) applied; no substitution changing defendant set occurred |
| Whether Franka v. Velasquez affects the outcome | Franka clarifies 101.106(f) scope | Franka does not control; not applicable to this case; §101.106(b) decision remains intact |
Key Cases Cited
- Garcia v. Mission Consol. Indep. Sch. Dist., 253 S.W.3d 653 (Tex. 2008) (defines when 101.106(a)-(f) apply; irrevocable election at filing)
- Hintz v. Lally, 305 S.W.3d 761 (Tex. App.—Hou. [14th Dist.] 2009) (discusses election mechanics and 101.106(f) substitution)
- Villasan v. O’Rourke, 166 S.W.3d 752 (Tex. App.—Beaumont 2005) (recognizes irrevocable election effects and limits of substitution)
- Kamel v. Univ. of Tex. Health Ctr., 333 S.W.3d 676 (Tex. App.—Hou. [1st Dist.] 2010) (affirms substitution approach under 101.106(f) in a related context)
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (interprets 101.106(f) for what claims are ‘brought’ under the Act)