*1 Dec. Dist.] (Tex.App.-Houston [1st *7 HOUSTON, Appellant, OF The CITY h.) (mem (holding report op.) no causation because concerning
inadequate condi- pre-existing to link decedent’s failed RODRIGUEZ, Individually injury for the Juana risk San an increased tions to claim). Friend of Juan and as Next in that involved Appellee. Rodriguez, brief, Hillery ar also appellate In his specu is opinion that Dr. Goldman’s gues No. 01-11-00196-CV. offer factual he “fails to because lative Texas, like[,] data, clinical, Appeals and the radiological Court (1st Dist.). blood clots that assumption his support which formed emboli pulmonary 22, 2012. May arrest. Kyle’s respiratory caused Ms. respi causes for a multitude of There are 5-day postoperative
ratory arrest for a argu this To the extent is patient.” ment, the one discussed distinct
above, not rule out Goldman did Dr. death, we overrule it. causes of possible
all Waxahachie, Bay at Baylor Med. Ctr. Wallace, Sys. v. Health Care lor no (Tex.App.-Dallas suggests (“Nothing in section pet.) to rule preliminary report required is injury, cause of the every possible out claimed, harm, damages especially given 74.351(s) discovery be limits that section filed.”); expert’s report a medical fore Shepherd- Hosp. Methodist see also (Tex. Sherman, n. 2 296 S.W.3d pet.) no App.-Houston [14th Dist.] (whether opinion is correct or not expert’s Chap summary judgment, not is issue for dismiss); Manor Care ter 74 motion to Inc., Servs., at 564 Health stating failure to administer anti (report pulmo caused coagulant drugs probably sufficient nary emboli that caused death causation). statement of
Conclusion of the trial court. We affirm the order
guez “perfected” City’s immunity un- der the Texas Tort Claims Act.2 affirm.
Background
In her original petition, Rodriguez alleg- es that she and her son personal sustained injuries when stopped she her car at a Estrada, traffic signal and Alberto City employee, failed to control speed of his city-owned operated car and struck her car Rodriguez from behind. further alleg- es that Estrada was operating the car in a negligent by manner failing to keep a proper lookout and speed. control his Rodriguez asserts that at the time of the accident, Estrada inwas the course and II, Bertrand L. Pourteau Judith L. scope of his employment and, with the City Ramsey, The City of Houston Legal De- such, as the City is liable for negli- his Houston, TX, partment, Appellant. gence under the respondeat doctrine of superior. Ardoin, Houston, TX, Richard for Appel-
lee. answer, In City its generally denies Rodriguez’s allegations and asserts that it JENNINGS, Panel consists of Justices is entitled to immunity from SHARP, and BROWN. Rodriguez’s claims under the Texas Tort
Claims Act.3 City also asserts that it cannot be vicariously held liable for acts of OPINION agents its employees who are entitled JENNINGS, TERRY Justice. to official immunity. In his separate an- swer, generally Estrada also denies Rodri- In interlocutory this appeal,1 appellant, guez’s allegations and govern- asserts both (the “City”), chal- mental and official immunity from her lenges trial court’s order denying its claims. plea jurisdiction to the on the tort claims made by appellee, San Juana In its motion to Rodriguez’s dismiss Rodriguez, individually Estrada, and as next friend claims against the City, noting son, of her Rodriguez. Juan In its sole Rodriguez’s that all of tort theories are issue, contends that the trial brought Act, under the Tort Claims ar- denying erred in plea jurisdiction its gued that because sued both which the Estrada, asserted filing the trial court was both it and its re- required to dismiss Estrada from the suit.4 garding matter, Rodri- The trial granted motion 101.021, (Vernon 1. See 2011). §§ id. Tex. Civ. Prac. & Rem.Code 51.014(a)(8) (Vernon § Supp.2011). 101.106(e). 4. See id. 101.106(b) (Vernon 2011). 2. See id. Pochucha, Consultants, Inc. v. Rodriguez’s all of
and dismissed construing In stat- against Estrada. utes, give objective our effect primary *3 thereafter, plea filed its Shortly expressed to the intent as in legislature’s arguing to that because jurisdiction, Id.; language of the statute. see also simultaneously brought suit had (Vernon § 312.005 Tex. Ann. Gov’t Code Estrada “regarding it and both 2005) (“In statute, interpreting a a court matter,” Rodriguez “perfect- diligently attempt legis- shall ascertain statutory immunity from City’s] ed [the lative consider at intent and shall all times suit,” her all of which barred claims.5 law, evil, remedy.”). the old and the If plea. trial court denied are clear unam- words of a statute and biguous, them their apply according we of Review Standard meaning.6 plain common and Galbraith trial ruling de novo a court’s We review Consultants, Inc., 290 Eng’g S.W.3d at plea. See jurisdictional Kalyanaram on a 867; Hughes, Rockwall v. 246 City of Sys., v. Tex. 230 S.W.3d 927 Univ. of (Tex.2008). S.W.3d 625-26 (Tex.2007). reviewing a trial court’s When jurisdiction, challenge a to its we ruling on Election of Remedies factu- plaintiffs pleadings
consider the and assertions, any al as well as in the evidence issue, City argues In its sole that the to the jurisdictional that is relevant record denying trial in its plea court erred Gonzalez, issue. Elsa 325 jurisdiction Rodriguez “perfected” because (Tex.2010). S.W.3d We construe City’s immunity when she simulta- liberally in favor of pleadings plaintiffs, neously filed suit both it and its intent, pleader’s look to the and determine the same regarding subject mat- alleged has affir- pleader whether the facts ter. See PRAC. & Tex. Civ. Rem.Code Ann. matively demonstrating juris- court’s 2011). 101.106(b)(Vernon § Allegations pleadings diction. Id. found in may affirmatively negate demonstrate or immunity Governmental exists jurisdiction. court’s Waco v. State, protect including subdivisions of the (Tex.2009). Kirwan, 298 S.W.3d municipalities City, like the from lawsuits money damages. and liability
We review the trial interpreta- court’s Mission tion novo. Dist. v. Eng’g Indep. of a statute de Galbraith Consol. Sch. 101.106(b). 311.021(2) (Vernon § § 5. See id. Tex. Gov’t Ann. Code 2005) (providing presumption that "entire Supreme explained Court The Texas has effective); statute” is intended to be id. inappropriate to that it is resort to rules of (Vernon 2005) § (providing in 311.023 or extrinsic aids construction to construe stat- statute, construing regardless ambiguity, utory language unambiguous clear and consider, "(1) may among things, other and we construe a words ac- must statute's attained; (2) object sought to be circum- cording plain meaning and to their common enacted; stances which the statute under was contrary apparent intention is unless (3) (4) legislative history; common law or unless such context or a construction statutory provisions, including former laws on results. leads to absurd Rockwall (5) subjects; the same or similar conse- (Tex.2008). Hughes, construction; (6) quences particular ad- presumption It has also noted the Texas statute; of the ministrative construction and legislature Code Act that the in- Construction (7) (caption), preamble, emergency title just tended a and reasonable result enact- provision”). (citing ing a statute. See id. Tex. Gov't Code (Vernon 311.021(3) 2005)); see also 655 & n. 2 immediately and forev- interpret statutory governmen- waivers of er bars recovery by suit or immunity narrowly, tal legislature’s as the plaintiff against immunity intent to waive must be clear regarding the same subject Id.; unambiguous. see Tex. Gov’t Code matter unless the (Vernon ANN. Supp.2011). consents.
The Texas Tort Act provides (c) The settlement of a claim arising limited waiver of immunity chapter under this shall immediately *4 for certain against governmental suits en- and forever bar the claimant from tities. See Tex. Civ. Prao. & Rem.Code any against suit or recovery from (Vernon 101.021,101.023,101.025 2011). §§ any employee of the govern- generally And it governmental waives im- mental unit regarding the same sub- munity to the extent liability arises ject matter. from the “use of a motor-driven vehicle or (d) judgment A against an employee of motor-driven equipment” or from “a condi- governmental unit shall immedi- tion or tangible personal use of or real ately and forever party the ob- bar property.” Id. 101.021. taining judgment any from The City does not dispute that section against or recovery from the govern- generally 101.021 waives its immunity for mental unit. negligence brought by claims like those (e) If a suit is chapter filed under this Rodriguez for damages resulting from a governmental both a ear allegedly collision by City caused any employees, and of its the em- Rather, employee. argues that a ployees immediately shall be dis- plaintiff like who simultaneously filing missed on the of a by motion pleads both the and its governmental unit. employee regarding subject the same mat- (f) If a suit is filed against employee ter is obtaining barred from relief of a governmental unit based on con- either the employee. or its The general duct within the scope of that 101.106(b), asserts that section under these employee’s employment and if it circumstances, grants “creates statu- [and] could have been brought under this
tory immunity suit, separate and chapter against governmental apart independent from—and of common- unit, the suit is considered to be law governmental immunity from suit.” employee in the employ- 101.106, Section entitled “Election of capacity only. ee’s official On the Remedies,” full, provides, in motion, employee’s the suit against (a) filing The of a suit chap- under this employee shall be dismissed un- ter unit con- less the plead- files amended stitutes an election by irrevocable ings dismissing the employee and the plaintiff immediately naming governmental unit as de- forever bars suit or recovery by fendant on or before day the 30th the plaintiff against any individual after the date the motion is filed. employee Tex. Civ. Prao. & Rem.Code regarding the same matter. added). (emphasis (b) The filing of a suit any em-
ployee of a unit consti- The argument concerning op- tutes an by irrevocable election eration of the provi- election-of-remedies (b) sued, only apply subsection contained in alone is language upon is based sion sued, and sub- alone is when the in Mis opinion Court’s Supreme Texas (e) both are sued apply when Independent School sion Consolidated The court Id. at 657-58. simultaneously.” Garcia, wherein District (e)’s subsection interpreted also appeals Tort scope of the “determine sought to chap- “filed under this to suits reference provis election-of-remedies Act’s applied that section 101.106 ter” to mean 653, 655 ion.”7 Act the Tort Claims for which to suits employees school-district In three immunity. Id. at waived terminated was employment whose the Texas violations of district sued with the “disagree[d] supreme The Act Rights Human on Commission interpretation,” narrow appeals’ court of (“TCHRA”)8 inten and for common-law potential application and it discussed Id. (e) of emotional distress. (b) tional infliction the suit. both subsections also sued employees (e),9 at 654-55. the court regard In to subsection Id. common- the district for *5 superintendent of the Tort Claims that because concluded defamation, fraud, negli and law claims of ... avenue for “only, limited[ the ] Act is district, Id. The misrepresentation. gent govern- the recovery common-law 101.106(b), the plea filed a to ment, section a citing alleged against theories all tort employees’ unit, the arguing that sued jurisdiction, whether governmental its both the district and employees, to sue with its are together decision alone or recovery against Act barred under the Tort Claims superintendent assumed to be The trial court Id. at Id. at 655. section 101.106.”10 purposes the district. of (citation omitted). the court of The court stated plea, the and denied district’s filed, affirmed, to reasoning pursuant that section if the district had that appeals (e), to dismiss the employees’ subsection a motion apply not 101.106 did superintendent, he appeals interpret claims the claims. Id. The court of of (a) have been entitled to dismissal “to would of section 101.106 ed subsection The against him.11 Id. employees’ the suit only apply when [a] it, delay duplicative litigation costs.” Id. at addressing the facts before 7. Before analyzed history 657. of the election-of- provision explained in remedies §§ legislature prior version 21.001-21.556 enacted the 8. See Tex. Lab.Code (Vernon 2006). provision to re- the election-of-remedies of circumventing spond plaintiffs to who were damages caps “or of supreme Claims Act’s court noted that Texas Tort (e) only protect government held "that subsection appeals and to had other strictures” employ- apply” to the Indep. section 101.106 could employees. Sch. Dist. Mission Consol. employees dis- sued the ees’ claims since together. superintendent Gar- trict and the part in as of a The court noted that cia, suggested The court S.W.3d at 658. sys- the tort comprehensive effort to reform concluding appeals erred tem, that the court pro- legislature further amended the (e) plain- applies when a that subsection forcing plaintiff purpose "a vision with the governmental unit its tiff sues both a whether an to at the outset decide employee. See id. or, instead, independently” "within the acted employment such general scope of his or her disputed in the instant matter is not 10. This vicariously lia- governmental unit is that the case. The amendment com- ble.” Id. at 656-57. "an irrevocable pelled plaintiff a to make acknowledged that the district filing a lawsuit so as 11. The court at the time of election” employees’ sought had not dismissal trial and the issues for "narrow[] to reduced (b) unit, that “if the had the other provided [district] court also stated subsection re- are quirements met.” Id. at 559-60. Not- superintendent’s] obtained dismissal [the (b) (e), ing expressly operates that subsection all of from the under subsection suit recovery to govern- bar suit against [the tort claims employees’] [the mental unit “unless the be- would have barred district] [also been] consents,” the court concluded that be- recovery al- cause ... all theories of tort legislature un- cause the consented leged pre- unit are TCHRA, der the the TCHRA claims would sumed be “under [Tort (b), application survive the of subsection (citing Id. Civ. PRAC. & Act].” Tex. Rem. provided procedures met the 101.106(e)).In regard Code Ann. outlined in that statute. Id. dis- employees’ claims TCHRA trict, explained the court that these dis- In summarizing holding concerning its crimination claims did not constitute 101.106, scope supreme chapter” stated, “suit filed under this and “would court (e)’s
not come subsection purview within that the Tort hold Claims Act’s elee- expressly because the Tort Claims Act provision applies tion-of-remedies to bar provides remedies it authorizes common-law Garcia’s ‘are in other reme- legal addition to ISD, but does not bar her TCHRA ” dies.’ (citing Id. Civ. Prac. & Tex. Rem. claims. 101.003).
Code Ann. Id. at 660. *6 supreme The then turned con- court to upon the language Based above in Gar (b), sider which ar- subsection the district cia, units, governmental City, the like have gued bar the “en- operated employees’ argued that section 101.106 creates a suit,” claims, including tire the TCHRA fatal-filing “harsh” rule that immunizes superintendent] “because was sued as [the governmental both the unit and its em well, (b) which is all that subsection re- ployee plaintiff, when a who has an other that, quires.” agreed “to Id. The court the claim, immunity-waived wise valid tort files (b) applies, any extent subsection it bars against appeals, suit both. in Courts of regard- suit against governmental the arguments, these have addressing endeav matter, ing the suits subject just not interpret plain language ored to the for which Claims Act im- the Tort waives in section 101.106 a manner that is both munity allege that or those common-law supreme prece consistent with our court’s claims.” court then Id. The noted does not dent and lead to absurd results. (a), (c), (e), (f), unlike sub- subsections Esparza, Houston v. (b) limiting 238, (Tex. section does not contain the App.-Houston 246-53 S.W.3d and, phrase chapter,” “by 2011, filed); “under this sub- pet. see also Amadi [1st Dist.] (b)’s terms, Houston, applies ‘any section literal it 259-62 brought governmental (Tex.App.-Houston pet. suit’ against [14th Dist.] claims, against superintendent sug- he law tort claims common but sought himself had dismissal claims gested not of the against the tort that district Garcia, made at him. operation a were barred as result of the Additionally, section 101.106. Id. at 654. confusingly, support and somewhat in of this explain why supreme 12. The court did not (e), proposition, court cites subsection ... district] "all tort claims [the only requires which the dismissal of claims would Id. at noted be barred.” 659. As employee. above, undisputed valid it is that there was no immunity any employees’ waiver for of the added).In passage, this (emphasis 03-09 Id. No. filed); Ngakoue, Barnum (Tex. *11 plaintiff, at that a 00086-CV, recognized expressly 2011 WL filed); Apr. simultaneously files App.-Austin Rodriguez, who like Friend, 337 S.W.3d Hills v. Richland and its of N. 387, Worth (Tex.App.-Fort claims for common law tort pet. granted). immunity been waived under has which any Act is not left without the Tort Claims a harsh argument for City’s the simul- as the result of remedy merely without mer entirely rule is not fatal-filing This is the filing. See id. taneous in the language Gar considering certain election- of the interpretation reasonable However, in addition to opinion. cia in the Tort Claims provision favors the of-remedies in language Garcia above, detailed actually we have in accord with which Act because it argument, that the suggesting language also legislature: there is language by used plain interpret intend to did not supreme court (e) chapter under this If a suit is filed way to create in as 101.106 such governmental unit both a plaintiffs that would bar fatal-filing trap employees, the em- of its entirely. For from court like immediately ployees be dis- shall pur discussing general in example, by filing of a motion missed on provision, the election-of-remedies poses of unit. the “election scheme stated that the court Prao. & Rem.Code Tex. Civ. em protect is intended added). 101.106(e) (emphasis early their dismissal by favoring ployees the same regarding conflicting language a claim when with the Presented govern made matter is also precedent of our in we follow (emphasis Id. at 657 employer.” mental in accord with Esparza, which is Court added). the court stat significantly, More language legislature used plain ed, 101.106(e). Accordingly, we in section *7 election Tort Act’s Under (b) does not bar Rod- hold that subsection scheme, an individual recovery against her common law tort riguez pursuing may sought be employee is barred City. See id. against governmental unit against 101.106(b), (e); at Esparza, § (1) suit is filed instances: when three trial court further hold that the 253. We only, id. City’s plea to denying not err in did (2) 101.106(a); filed § when suit jurisdiction.13 governmental unit both sole issue. We overrule employee, 101.106(e); and its id. (3) employ- when suit is filed Conclusion scope was within the ee whose conduct and the suit of the trial court. employment or her affirm the order of his brought against could have been 101.106(f). BROWN, concurring. unit, Justice id. (Tex.App.-Houston [1st opinion in 01-11-00133-CV contemporaneously issue an
13. We case, 22, 2012, h.). In that May pet. no addressing application Dist.] another case 101.106(b) similarly does initially we hold that section plaintiff who 101.106 to a plaintiff’s immu- of the inju- require not dismissal its sued both the against the after nity-waived tort claims vol- in a car collision but then ries sustained voluntarily her claims non-suits em- untarily the claims non-suited Vallejo, employee. See id. No. ployee. See Houston BROWN, Justice, concurring. HARVEY already
This Court has decided the issue presented in this case: whether the Tort provision
Claims Act’s election-of-remedies plaintiffs bars a tort claims gov ernmental unit when the plaintiff initially
sued both the unit and its employee. Houston v. Esparza, (Tex .App.-Hous filed).1 ton [1st I Dist.] would follow this controlling precedent Court’s
and affirm the trial court’s denial of the
city’s plea jurisdiction.
I therefore concur in opin- the Court’s ion. HOUSTON, Appellant,
The CITY OF Anjel Blanca VALLEJO and Flores, Appellees. No. 01-11-00133-CV. Texas, Appeals Court of (1st Dist.). May *8 issuance, 01-11-00493-CV, quez, Since its this Court has consistent No. 2011 WL See, ly 6147772, Esparza. e.g., City followed (Tex.App.-Houston Houston at *2-3 [1st of Gwinn, 01-11-00524-CV, 8, 2011, (mem. No. 2012 WL pet.) op.) Dist.] Dec. no 1068591, (same); McClain, (Tex.App.-Houston at *1-2 [1st Houston v. No. 01- of 29, 2012, h.) (mem. 11-00194-CV, pet. 6015697, Mar. Dist.] no. op.) 2011 WL at *2-3 (following Esparza); 1, 2011, Metro. Transit (Tex.App.-Houston Auth. v. [1st Dist.] Dec. 01-11-00747-CV, Light, filed) (mem. (same); No. pet. 2012 WL op.) City Houston 252187, (Tex.App.-Houston 01-10-01071-CV, at *1-2 Miguel, [1st Dist.] v. San No. 26, 2012, (mem. (same); 5429048, pet.) Jan. op.) no WL (Tex.App.-Houston at *2-3 [1st 10, 2011, Tsaig, h.) (mem. Houston v. No. pet. 01-11-00432- op.) Dist.] Nov. no. CV, 170606, (same). WL (Tex.App. at *2-3 appeals Several other courts of have 19, 2012, See, Houston pet.) [1st Jan. Esparza. e.g., Dist.] no also followed Tex. Tech (mem. (same); op.) Dep't Aging Tex. & Villagran, Univ. Health Scis. Ctr. v. Johnson, Disability Servs. v. No. 01—11— (Tex.App.-Amarillo Mar. 00526-CV, h.); 2012 WL (Tex.App. at *2 pet. Dep’t Safety no. Tex. Pub. 5, 2012, pet.) Deakyne, [1st Dist.] Jan. no (Tex.App.- (mem. (same); op.) h.). Houston v. Mar San Antonio no