Texas Adjutant General's Office v. Michele Ngakoue
408 S.W.3d 350
| Tex. | 2013Background
- Ngakoue sued TAGO employee Franklin Barnum for negligence arising from an Austin car accident; Barnum was a TAGO employee at the time.
- Barnum moved to dismiss under Tex. Civ. Prac. & Rem. Code § 101.106(f), asserting the conduct was within the scope of employment and suit could have been brought under the TTCA.
- Ngakoue filed an amended petition within 30 days adding TAGO and alleging TTCA waiver but did not expressly dismiss Barnum in the body of the amended pleading.
- The trial court denied Barnum’s motion to dismiss; TAGO filed a plea to the jurisdiction seeking dismissal based on § 101.106(b) and (f).
- The court of appeals reversed dismissal of Barnum but allowed Ngakoue to proceed against TAGO; Supreme Court affirmed that Barnum must be dismissed but held TAGO remains a proper defendant and may be sued under the TTCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suing an employee for conduct within scope of employment triggers §101.106(b) bar to later suing the governmental unit | Ngakoue: §101.106(f) permits treating the suit as one against the government and adding TAGO; TTCA waiver applies so §101.106(b) does not bar TAGO | TAGO: Plaintiff’s failure to dismiss employee per §101.106(f) means §101.106(b) bars suit against the government unless strict procedural compliance is shown | Held: §101.106(b) does not apply where §101.106(f) deems the suit to be against the official in official capacity; plaintiff may proceed against the governmental unit if immunity is waived under the TTCA; employee must be dismissed |
| Effect of §101.106(f)’s 30‑day amendment/dismissal requirement on ability to sue governmental unit | Ngakoue: Amending to add TAGO satisfied the subsection; dismissal of employee is procedural and not a jurisdictional prerequisite to suit against TAGO | TAGO: The 30‑day requirement to both dismiss the employee and name the governmental unit is mandatory; failure bars suit under §101.106(b) | Held: The 30‑day dismissal procedure governs dismissal of the employee but does not bar suit against the government when the claim could be brought under the TTCA; failure to expressly dismiss the employee does not invoke §101.106(b) bar |
| Whether filing suit against an employee who acted within scope should be treated as suit against the governmental unit | Ngakoue: Where claim could be brought under the TTCA, suit against employee is treated as official-capacity (i.e., against the government) | TAGO: Plaintiff’s initial election to sue the employee triggers §101.106(b) unless plaintiff follows §101.106(f) precisely | Held: Court reiterates that §101.106(f) treats such suits as against the employee in his official capacity (i.e., effectively against the governmental unit), so §101.106(b) is not triggered in that context |
| Proper remedy when employee was sued for conduct within scope and plaintiff amends to add governmental unit but fails to expressly dismiss employee | Ngakoue: Amendment adding TAGO suffices to proceed against the government; employee should be dismissed | TAGO: Because plaintiff did not dismiss employee as required, both employee and TAGO should be dismissed | Held: Employee entitled to dismissal as a matter of law under §101.106(f); TAGO remains as defendant because TTCA waiver applies and §101.106(b) does not bar suit in this situation |
Key Cases Cited
- Hosner v. DeYoung, 1 Tex. 764 (Tex. 1847) (sovereign immunity requires the State’s consent to suit)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (purpose of §101.106 is to force early election between suing employee or governmental unit)
- Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012) (statutory waivers of immunity construed narrowly)
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (a suit against an official in official capacity is effectively a suit against the governmental unit; §101.106(f) forecloses individual-capacity TTCA claims for employees acting within scope)
- Kentucky v. Graham, 473 U.S. 159 (U.S. 1985) (official-capacity suit is another way of pleading an action against the entity)