Texas Adjutant General's Office v. Michele Ngakoue

GENERAL’S ADJUTANT TEXAS Petitioner,

OFFICE, NGAKOUE, Respondent.

Michele 11-0686.

No. Texas.

Supreme Court of Dec. 2012.

Argued Aug.

Delivered Hodge, Attorney

Daniel T. First Asst. General, Mattax, David C. of De- Director employment, procedure Attorney Litigation, Office fense be main- immaterial to whether Abbott, General, Attorney Gener- Greg W. defendant —the proper tained Mitchell, Texas, Solicitor F. al of Jonathan case, government. In this General, General, Attorney of Office as a matter of law was entitled to dismissal III, Craft, J. “Bill” Cobb L. William Ranee undisputedly him because the suit General, Attorney Sandra Office general within the from conduct arose Kim, General of Attorney Faye Assistant scope employment, Austin, TX, Adjutant Texas, for Texas proceed because governmental unit should Office. General’s to, did, entitled was Davis & Wilkin- Redinger, Lea Adrienne a his to assert TTCA pleadings amend Jackson, son, P.C., The Office of Chris According- government. claim TX, Jackson, Austin, Michele for Chris of the court of ly, judgment affirm the we Ngakoue. different although for reasons appeals, opinion. those expressed from LEHRMANN delivered Justice Court, in which Chief opinion the Background I. HECHT, JEFFERSON, Justice Justice Franklin Barnum Ngakoue Michele sued GREEN, and DEVINE Justice Justice damages arising out of an automobile joined. Austin, Texas, occurred accident that provi- how Today various we determine caused alleging negligence that Barnum’s Tort Act’s of the Texas Claims sions accident, At time of the the accident. statute inter- election-of-remedies [TTCA] the Texas Barnum was an Prag & See Tex. Civ. act with one another. (TAGO). Bar- Office Adjutant General’s § 101.106. The statute encour- Rem.Code himself filed motion to dismiss from num mandates, plaintiffs to ages, and in effect 101.106(f) of the pursuant to section against governmental pursue lawsuits Remedies Texas Civil Practice and Code. employees when rather than their units if part that suit is provides That section employee’s on the conduct the suit based against government employee in the filed Section employment. “[o]n then employee’s capacity, 101.106, a suit part, bars motion, the suit absent the unit’s consent ernmental unit unless the employee shall be dismissed the unit’s after a sues dismiss- files amended subject matter. How- regarding the same ing

ever, that when an provides also thirty as defendant” within mental unit ee for acts conducted within the is sued days. Prao. & employment, general scope filed an Ngakoue amended TTCA, could have been days entitled “Plain- petition thirty within to have been then the suit considered First Amended Petition & Motion tiffs unit, not filed Franklin Bar- as to Defendant Dismiss hold employee. Accordingly, num,” we TAGO as a defendant which added brings who such a suit of the document to body but failed in the asserting request an specifically barred reference or Barnum’s governmental employer. pe- the suit. claim dismissal from Further, alleged sovereign im- has set out tition that TAGO’s while the TTCA munity was waived under be- for the dismissal procedure “from the negligent the claim arose acting was cause employee who ostensibly invoking and omissions of while [Barnum] [Bar- acts waiver of im- cle— acting munity was in the course and num] under the TTCA—the court con- employment by The trial cluded that it [TAGO].” his barred 101.106(b). eventually denied Barnum’s motion court See Tex. Civ. PRAo. & Rem.Code 101.021(1). agree to dismiss. We the court of appeals that motion Barnum’s to dismiss filed a subsequently plea TAGO to the should granted. have been We also dismiss, jurisdiction motion claim- agree, though reasons, for different Ngakoue comply ing failed with the jurisdiction plea TAGO’s to the prop- requirements by of subsection not dis- erly denied. missing Barnum in pleading, his amended arguing that both against and Barnum II. The Texas Tort Claims Act and TAGO should be dismissed as result Section 101.106: Election of that failure. Specifically, argued

of TAGO Remedies pursuant that Barnum should be dismissed (f), TAGO while itself should state can be “[N]o sued her (b). dismissed pursuant consent, own courts without her and then 101.106(b) (“The § id. filing of a suit only in the manner indicated by that consent.” any of against 764, Hos 1 DeYoung, ner v. Tex. by unit constitutes an irrevocable election (1847). 769 This is because lawsuits immediately and forever against “hamper governmental the state recovery by suit or bars tax by requiring functions resources to be regarding used for defending lawsuits and paying the same the gov- matter unless judgments than using rather those re consents.”). ernmental unit The trial sources for intended purposes.” their court denied and motion plea TAGO’s Indep. Mission Consol. Sch. Dist. v. Gar dismiss, and both TAGO and Barnum cia, 653, (Tex.2008) (cita 253 S.W.3d 655 timely appealed. omitted). tion and quotation internal marks The court of appeals Accordingly, reversed the trial of sovereign doctrine im order denying munity court’s Barnum’s motion to “bars the state its However, the court by dismiss. affirmed the entities” unless the state consents waiv plea jurisdiction, ing immunity. denial TAGO’s to the A Prairie View & M Univ. Chatha, (Tex.2012).

holding Ngakoue’s failure to comply 381 S.W.3d with subsection did not bar suit manner in which the “[T]he More specifically, ap- conveys through TAGO. the court of to suit is consent (1) Ngakoue held peals that: failed to Constitution laws.” and state “ (f)’s Thus, comply procedural ‘it Legisla re- S.W.3d is the quirement properly dismissing province abrogate ture’s sole waive or days Barnum within Id. thirty sovereign immunity.’” (quoting Barnum’s Tex. (2) dismiss; nonetheless, motion that Natural Res. Comm’n v. IT- Conservation (Tex.2002)). failure had no the operation Davy, effect on Be (3) (b); immunity any legislative does cause waiver of “by bar must be undertaken clear and unam biguous language,” that otherwise falls within waiver of waivers immunity narrowly. itself. are construed TTCA be- to be 311.034; Ngakoue’s cause TAGO arose see also Gar Gov’t Code cia, employee’s from its of a motor vehi- use S.W.3d at 655. immediately on the waiver of be dismissed provides

The a limited shall TTCA a motion certain immunity for tort unit. See Tex. Crv. Prac. & government. (f)If §§ relevant 101.001-.109. As is a suit is filed RehCode here, imposes liability on conduct TTCA of a unit based employ- acts of negligent general scope ernmental unit of that acting if it could have employees ee’s chapter against from the injury if the claimed “arises under this ment is consid- vehicle” the suit or use motor-driven operation ered to be person- have been and the would employee’s only. On Id. ally liable under Texas law. motion, 101.021(1). the suit includes a TTCA also Remedies,” shall be dismissed unless entitled “Election of files dis- address- provisions which contains various missing the and the pro- and ing pleading different scenarios governmental unit as defendant or vides: the 30th the date day before after the (a) filing chap- The of a suit under motion is filed. governmental unit consti- ter § To we Id. 101.106. resolve this case must by an the tutes irrevocable election analyze operation the of and interaction immediately and and forever plaintiff provisions the 101.106 between section any recovery by suit or bars of both consequences to determine against any individual Ngakoue’s election file Bar- suit unit the same governmental regarding Ngakoue’s response num and actions matter. subject Barnum’s motion dismiss. against any of a em- suit statute, interpreting When our ployee unit consti- to ascertain in by goal Legislature’s an tutes irrevocable election 174, Lopez, forever tent. In re 372 S.W.3d 176 immediately and and (Tex.2012) (orig. proceeding). The best any recovery by bars suit or usually to that regarding guide unit determination is plain language Fitzgerald subject gov- the same the statute. matter unless Inc., Spine Sys., ernmental unit v. Advanced Fixation 996 consents. 864, (Tex.1999). But we must (c) arising The settlement a claim whole, view the statute as a id. at and chapter immediately under this shall and must endeavor to read statute “[w]e any forever bar the claimant from suit word, contextually, giving every effect to recovery any employee or from clause, sentence,” In re At regard- of the same Office of —Gen., S.W.3d -, -, torney subject ing the same matter. (Tex.2013). consider WL We (d) judgment against A sought “object to be obtained” immediately a governmental unit shall as well as “consequences statute obtaining and forever bar the party particular construction.” Tex. Gov’t Code re- judgment any or (5); 311.023(1), Hodges, see also State v. covery from the unit. (Tex.2002). 92 S.W.3d (e) chapter If a suit is filed under this Garcia, both a In that section we observed employees, employees of its is intended “force a 101.106 employee mediately whether an decide at outset forever” bars independently solely thus lia- acted unit regarding the same ble, general scope or acted within matter, subject “unless the gov- his her such that unit consents.”2 & Rem. Prac. vicariously ernmental unit is liable.” Gar- 101.106(b). We held in Garcia Code cia, turn, In 253 S.W.3d at 657. that “consent” under subsection in- 101.106’s election the expe- scheme favors cludes of immunity, waivers governmental employees dient dismissal of “provided the procedures outlined when suit should have been [waiving immunity] have been government.1 early An Id. met.” Specifi- determination of who the prop- constitutes cally, plaintiffs’ we held that er defendant for trial “narrows issues against an employee the Texas delay duplicative litiga- and reduces Commission on Human Rights Act ability removing tion costs” did not bar [TCHRA] plead alternatively “to ernmental unit regarding the same mental unit is liable because its matter because the had con- acted within the of his or her author- sented to suit via the waiver of immunity but, not, ity if acted Id.; contained in that statute.3 see also independently individually and is liable.” §§ (waiving 21.001-556 im- Lab.Code determining meaning Id. TCHRA). munity from suit under of section provisions, 101.106’svarious we that, argues Garcia, must TAGO clearly pursuant favor construction that most early (b) leads to dismissal of a suit “consent” under against an when the suit arises be found in of immunity waivers an employee’s conduct that was with- found outside the TTCA itself.4 We dis- in the of and could be (b)’s agree. Nothing in subsection brought against government under limitation, suggests nor such we did find TTCA. Rather, case, in one Garcia. in that plaintiffs common-law tort claims of

Central resolution were barred not because (b) (f). case are subsections Subsec (b), of subsection but because (b) they did not provides tion that suit fall within the TTCA’s limited waiver of an a of 658-59, is an immunity, “irrevocable election” that “im- 253 at while the S.W.3d recognized We 1. have that section 101.106 3. Court noted Garcia that "[w]hether originally problem enacted to address the necessary procedural Garcia taken the ha[d] plaintiffs suing governmental employees of steps right perfect her to sue under the rather than the unit itself in parties TCHRA a is matter have not ad- damage caps order to avoid the and other 253 dressed.” S.W.3d at 660. TTCA, imposed by ap- restrictions which ply only government. split There appeals 4. is in the courts of on Garcia, 253 at S.W.3d 656. e.g., City Compare, this issue. Amadi v. of (b) Houston, 254, We 2. note that the bar in subsection is not (Tex.App. 260-61 369 S.W.3d TTCA, limited to suits under the unlike other 2011, pet. Aug. Houston [14th Dist.] denied provisions Compare in section 101.106. 30, 2013), City Tex. Esparza, Houston v. of 101.106(b), § & with id. Civ. Prac. Rem.Code 238, (Tex.App.-Houston 369 S.W.3d 242-43 101.106(a), (c), (e), (f) (referring § to suits 30, 2011, 2013). Aug. pet. denied [1st Dist.] arising chapter filed or claims "under this TTCA]”). [the 356 (b) sent, apply simply does sepa- to the claims survived due

TCHRA statute, id. here. of in that rate waiver above, the bar subsec- As discussed a suit triggered by “filing court of tion argues, and the

Ngakoue thus any employee held, underlying that because appeals an unit.” resulting from alleged damages suit Tex. Civ. Prac. & 101.106(b). (f), however, negli caused automobile accident against an a suit is filed acting “[i]f states of an gence unit based because the employment, general scope of that immunity for has waived such conduct Legislature 101.021(1) if could employee’s employment section suits under chapter [the under this TTCA, to have been has consented and, TTCA] bar in subsec under the em- is considered longer applies. no S.W.3d official ployee consent responds TAGO recog- have only.” Id. We requires just waiver “a official compliance with nized that state immunity, but also strict merely way pleading an action procedures pertinent out in the ‘another set 101.106(f) case, entity of official] [the statute —in this ” See, e.g., agent.’ Velasquez, Health Franka v. TTCA. Univ. of (Tex.2011) Webber-Eells, 367, 233, (quoting 382 n. 68 Ctr. v. Sci. Graham, 159, 165, pet.) Kentucky no U.S. (Tex.App.-San Antonio (1985)) to file 105 S.Ct. 87 L.Ed.2d (holding failure (alteration substituting gov original). “[a] capaci- in his response a state official ernmental unit a defendant (f) a ty against person- motion ‘is not suit to the in govern ally, party for the real interest is the subsequent against barred suit ” dismissal). entity.’ Kentucky, U.S. following Specifical (quoting ment Id. 3099). suit,” a we and the dissent would at 105 S.Ct. “Such ly, argues, TAGO (f) hold, noted, “actually impose lia- a have seeks to requires that subsection against like rather governmen bility to both add the Ngakoue specifically in on the tal unit and dismiss the re than individual named is, name, respects a all other than a sponse to motion dis in against entity.” (emphasis to avoid the Id. miss in order bar added) marks, (b). (citations, quotation and al- Ngakoue Because added omitted). Thus, pursuant a but dismiss to sub- TAGO as defendant failed to teration contends, (f), Barnum, government a a Ngakoue against TAGO failed section scope em- employee acting the bar comply with subsection below, we that could have applies. ployment As discussed need not been meaning reach the of whether the under the issue TTCA— (b) had a tort claim to assert consented suit under subsection be cause, been independent question government5 of con considered have —is that, However, Franka, In we held in the context of S.W.3d at 379. 101.106, government may “brought pursuant to claim section tort " immunity apart regardless that exist from the 'under' the TTCA of whether the waivers "brought the TTCA. that claim. 332 TTCA are not under” TTCA waives brought against not a suit employee; the employee. is, in only, all but name a suit Franka, unit. (f)’s express classifi 68; at 382 n. see also Univ. Tex. Health. cation of such a suit as one Sci. Ctr. at San Antonio v. Bailey, 332 governmental unit not empty language. (Tex.2011) S.W.3d 401-02 (holding Franka, As discussed in “public employees that employer may be sub ... always individually have liable stituted for the employee under subsection torts, for their own even when committed (f) after limitations has run because there employment, the course of and suit change is “no party real in inter be brought against employ est”). Such a suit therefore does trig ee in his capacity” individual to the extent ger the bar in subsection subsequent the employee is not entitled to official imm unit re (internal unity.6 S.W.3d cita garding the same matter. omitted). However, tions enacting sub (f), section the Legislature “foreclose[d] In arguing that the subsection bar govern [under TTCA] triggered, was TAGO principally relies ment in his individual capacity if (f), second sentence of subsection he acting of employ provides: the employee’s “[o]n mo- ment.” Id. at 381. This furthers one of tion, the suit shall be primary purposes of both the TTCA dismissed the plaintiff unless files amend- generally particu and section 101.106 in ed dismissing lar—to protect governmental employees naming the governmental unit as defen- acting of employment. See dant on or before the 30th day after the 656-57; 253 S.W.3d at see also date the motion is filed.” Tex. Civ. Prao. & Franka, 332 contends, TAGO hold, and the

Further, dissent would provi- and in conjunction with sion specific sets out a purpose, procedure Legislature’s choice of must be followed affects its inter —dismissal (b). action with Again, the bar addition of the to suit ernment thirty days unit in as defendant within sub triggered by employee’s filing filing of a motion—to avoid (b). against suit employee an of the unit. the bar in subsection disagree. We 101.106(b).7 § (f) Civ. PRAC. & Rem. Code But portion This of subsection simply pro- against an in employee his official procedure by vides a which an employee Garcia, i.e., (quotation 253 S.W.3d at filing against 659 marks a tort claim the TTCA— omitted). against ernmental unit —bars suit an "individ- employee” regarding ual of the unit the same implicated 6. While the doctrine is not in this matter, regardless of whether immuni- case, public employees generally may "assert ty has been waived. Tex. Civ. Prac. & Rem.Code immunity arising official 'from suit from the 101.106(a); Cnty. Sykes, see Harris (1) performance discretionary of their duties (Tex.2004) (applying pri- S.W.3d the (2) (3) good long they acting faith as as are ” plain- or of section version 101.106 to bar the Franka, scope authority.’ of their against governmental employee tiff's claim (citing City 332 S.W.3d at 383 Lancaster v. though immunity even was not waived under Chambers, (Tex.1994)). 883 S.W.2d against governmental the TTCA for suit the (a), Correspondingly, under unit). subsection against governmental unit under the recognized purposes 101.106’s is to have been sued who considered ensuring early governmental will in his official be dismissed dismissal employee the such an employees suit.8 When when suit should have dismiss, entitled to against government files a motion to he is re- the dismissal, occur in one of two delay which will ducing expense the associated (1) Garcia, the ways: via pleading. with alternative the pleading substituting defendant; employee

unit for the the (2) via pleading, absent an amended such purposes by are served same em- granting trial order court’s (e), applies when suit is dismissing the suit ployee’s motion unit un filed both Id. But employee.9 employee. the TTCA and its der action require does not affirmative 101.106(e). Prac. & In such plaintiff. cases, immediately “the shall employee filing dismissed on the of motion consequence failing while By Id. such a unit.” government substitute the motion, effectively unit response employee’s to an ee employee acting confirms the em- (assuming motion to dismiss gov employment capacity) in his is ployee was sued official ernment, not is proper employee that “suit shall be (e) Further, party. does dismissed,” id., not bar such failure does provide for dismissal of the subsequent government. so when the dismissed

Significantly, procedure for dismissal provision, pro under that the suit then way in subsection no solely government, ceeds as provision modifies the remainder of the suming immunity is waived. otherwise that, clarifying where a tort claim could (where at 659 tort have been asserted were claims asserted TTCA, mental employer, and a and TTCA employee involving con- against the unit’s immunity did not waive for the claims duct within the asserted, would nevertheless “considered to be gov have been to dismissal entitled capacity only” —that motion, is, and the against” the suit “considered to be ernment’s TTCA survive). itself, would not the em- (f)’s Instead, TAGO is correct in ployee. proce- recognizing Id. therefore that, independently dure for serves to the dismissal extent is otherwise not, (f) suggests, an 8. dissent classifies subsection as 9. We therefore do as the dissent (f) "effecting construe subsection as an auto- (b) "exception” in to the bar subsection re- matic of the substitution (f)'s quiring compliance strict with subsection employee,” for the such that the sen- second procedures. This con- provision meaning- tence of is rendered improperly struction into inserts less. See 408 S.W.3d at 370. name, If ignores provisions one or the fact both brought against been suit has that, below, as further subsection discussed employee, employee and procedurally the still (0 n procedures are focused on dismissal of dismissed, by plaintiff's must be whether required upon which is pleading or the trial order court's filing any regardless of a motion to dismiss employee's on the motion. Tex. Civ Prac. & 101.106(f). plaintiff. further action TTCA, under the a waived cedural for mechanism dismissal of the classification, unit cannot subsection use foreclose does not affect this against having a plaintiff brings suit it after used subsection who a such suit is (e) to dismiss its from the suit.10 barred subsequent- (“We See, e.g., Esparza, ly pursuing 369 S.W.3d at 248 against claim the govern- reject contention that subsec- City’s mental unit.11 (e) apply tions without reference to contrast, By TAGO’s and the dissent’s other each when claimant sues both interpretation attributes to the government employee together, and its a far harsher expressed intent than is requiring thus dismissal of both defen- the statute. The dissent would force a dants.”). plaintiff, who may position not be in the sum, require In does not knowing whether the acting defendant was employee by dismissal of the employment when suit bar against filed, to overcome the to suit was to choose (b); rather, government in proceed sub- whether to against the employee (f) provides section the TTCA the governmental thirty unit within days window to amend his to substi- aof subsection motion However, tute the unit before the to dismiss. a plaintiff may not court the em- dismisses be able obtain necessary the information ployee motion where to make such a decision within such a appropriate. frame, Tex. Crv. short time and an erroneous deci Prac. & Rem.Code sion, view, If the substi- fails to in the dissent’s would mean that the government, tute and the suit is goal forever barred. But central only, sued his official then of the TTCA as a whole is to allow certain the case types must be dismissed. Id. But government; of suits as above, the governmental unit noted the current version of section go is otherwise waived may for- necessary 101.106 became plain because ward, just proceeds as a suit began suing tiffs governmental employees government an employee is dis- as individuals to avoid the TTCA’s limita (e). missed under subsection Because sub- tions. at 656. classifies the em- while it makes interpret sense to the sec ployee who was acting curtailing as employees (where the suit could have could be instead TTCA) government, as effec- illogical it would be for the tively constituting a provisions prohibit election-of-remedies ernment, (f)’s pro- very and because subsection suits the TTCA authorizes.12 See agree appears 10.The dissent that suit result is odds with both the text proceed against purposes when an of the statute. government’s is dismissed on the (e). motion under 11. are Plaintiffs still other limi- However, S.W.3d at respect suing government, under the dissent’s tations with (e) interpretation of containing as such limitations or other procedural requirements strictly procedural requirements that must be that must be satis- followed, who sues both fied under TTCA. voluntarily ernment and an but disagree dismisses the without need for We with the that our in- dissent by government, terpretation a motion is barred from of renders subsection (b), proceeding against government. meaningless. Such a sub- Unlike subsection (f) appropriate. The Franka, was therefore (noting that section 332 S.W.3d at 385 denying in accordingly court erred employee lia trial “restrictions on motion to tradeoff Barnum’s dismiss. always part been bility have immunity, ex waiver of for the [TTCA]’s However, liability Ngakoue’s because own

panding government’s conduct”). brought against Barnum in his official was provisions employees’ trigger the suit did not capacity only, a number of provide 101.106 section (b) to a TTCA suit bar in subsection em for dismissal avenues TAGO, Ngakoue’s nor failure did duplicative litiga and avoidance of ployees Ngakoue’s in amended tion, to dismiss Barnum favor a suit they generally but contemplated petition. Because the result appropriate when (f) is by in this situation dis plain rather than wholesale dismissal (the employee), of Barnum TAGO missal otherwise-meritorious suit. tiffs unit) (the properly remains Had the trial as the sole defendant.13 Application III. properly granted court Barnum’s motion case, Ngakoue originally elected In this dismiss, pur primary to section 101.106’s Barnum, employee. to a TAGO sue proceeds against pose ensuring — to under subsec- Barnum moved dismiss early defendant proper governmental (f), asserting acting he was litigation in have been satis —would and that suit could scope employment fied. the TTCA. Once have been under dismiss, Ngak-

Barnum filed his motion IV. Conclusion (1) dispute that Bar- oue faced choice: hold that Barnum was entitled urge num acted in his official We under subsection as a matter deny Barnum’s motion dis- dismissal the court undisputed miss, because pursuing thus his claims Bar- law alone; (2) Barnum pursue his claim was based conduct num TAGO, of his general which within employment tal could have been in turn end Barnum. would his latter, brought against in TAGO under the TTCA. Ngakoue alleging elected the his dismissal, was how- petition acting that “Barnum was TAGO not entitled ever, apply his does not course and because considered to have sovereign TAGO’s [TAGO]” capacity only, and immunity By waived been sued in his official TTCA. election, because was otherwise waived Ngakoue implicitly conceded this Accordingly, in his official under the TTCA. trial that he had sued Barnum correctly denied motion to capacity only and that dismissal under sub- court TAGO’s holding applies only could 13. The dissent asserts that belies to suits that have previous statement that suit our under the TTCA. Civ. Prac. & if the must dismissed 101.106(b), (f). While subsection his fails to amend dismiss (t) mitigate consequences does the harsh im- response employee's employee to the mo- posed by respect to TTCA Ngakoue at 370. Because tion. claims, made that determination was the trial added TAGO as defendant before choosing to in- motion, ruled on Barnum's dismissal of court in furtherance of the clude Barnum, TAGO, but not the suit purposes of the statute. appropriate. dismiss, and we affirm the judgment failed to do what subsection appeals. court of allowed, his claims the employee dismissed, must be and the plaintiff has Justice BOYD delivered a dissenting not appealed that holding. But the court JOHNSON, opinion, in which Justice appeals went on to hold that the plain- WILLETT, Justice and Justice GUZMAN tiff’s the governmental unit joined. dismissed, need not be and the govern- mental unit appealed has that holding. BOYD, Justice joined by Justice affirms, The Court based not on the court JOHNSON, WILLETT, Justice and appeals’ reasoning or even on the GUZMAN, plain- Justice dissenting. arguments, tiffs but on a completely new The plaintiff in this govern- case sued a construction view, of the statute. In my they ment after were involved the Court substantially rewrites the stat- a car accident that they agree occurred result, ute to reach this revising the lan- of the employee’s employ- guage of subsection and rendering sub- ment with a unit.1 Two sub- section meaningless. Section 101.106is sections of the Texas Tort Claims Act’s admittedly construe, difficult to but read- election-of-remedies provision apply to ing whole, the statute aas staying and as 101.106(b) such a suit: true possible as Legis- provides that the filing of a enacted, lature that, I would hold because an employee governmen- failed to do the thing tal unit “constitutes irrevocable election allowed him to do to avoid immediately and forev- is, dismissal—that dismiss the er bars recovery by suit or the plain- and name unit as the tiff unit regard- defendant —his claims ing the same matter unless the mental unit must be dismissed. I there- governmental unit consents.”2 Subsection respectfully fore dissent. (f) says things first, two about such a suit: the suit “is considered to be I. official capaci- second, ty only,” upon the employee’s Statutory Construction motion, the suit “shall be dismissed un- requires This case interpret us to less,” thirty days, files apply section 101.106 of the Tort Claims an amended pleading dismissing the em- statute, Act. In construing a task “[o]ur ployee the governmental unit Legislature’s effectuate the expressed defendant.3 Allen, 696, intent.” In re case, (Tex.2012).

In this after the employee filed a legislative Our search for in dismiss, motion to the plaintiff filed an begins tent with the language: statute’s amended pleading kept the employee “Legislative intent is best leg revealed in aas defendant and added language.” islative In re Att’y Office of —Gen., tal unit as an additional S.W.3d -, -, defendant. 11-0255, No. that, appeals (Tex. court of 2013). held because the *4 WL Mar. Although peti- 2. See Tex. Civ. Prac. & Rem.Code 101.106(b). case, expressly agreed tioner has not that the accident occurred within the 101.106(b). 3. See Tex. Civ. Prac. & Rem.Code employee’s employment, it has not con- tested it in this Court. “suit,” of by describing the kind unambigu- begins language the statute’s is When “claim,” results, applies: “judgment” or to which not lead to absurd ous and does is ends there: “Where text search also our (a) filing chap- of a this The suit under Id.; clear, Entergy is determinative.” text governmental unit con- ter Summers, States, Inc. v. 282 S.W.3d by an election stitutes irrevocable Gulf (Tex.2009). the law as “Enforcing immediately mat- refuge in is a court’s safest written recovery by any bars suit or forever construction, statutory and we of ters any individual plaintiff against rewriting text always refrain from should unit governmental of Entergy, chose....” See lawmakers matter. regarding subject the same words cannot add 282 S.W.3d We filing against any em- suit into, from, or delete unit con- ployee of “necessary to unless so is provision doing by election stitutes an irrevocable intent,” to clear be- give legislative effect immediately and “[o]nly truly extraordinary circum- cause recovery by any forever bars suit or legislative showing unmistakable stances plaintiff against enforcing the divert us from intent should regarding tal unit the same Ad- Fitzgerald written.” v. statute as matter unless the Inc., Sys., Spine vanced Fixation consents. (Tex.1999). 864, 867 (c) arising The settlement of a claim immediately chapter under this shall text, give we construing In statute’s forever the claimant from bar plain, ordinary meaning their the words any recovery or from the statute an alternative unless indicates any employee govern- the same meaning. Geophysical See TGS-NOPEC mental unit the same sub- (Tex. regarding Combs, Co. ject matter. 2011) (observing statutory terms are (d) ordinary assigned A given meaning judgment against unless an meaning or different immedi- different unit shall context). But meaning apparent from ob- ately party and forever bar the meaning” taining any does not mean devoid “plain judgment context; always contrary, to the we have recovery from a whole” rather considered statutes “as mental unit. provisions.” id. at

than as “isolated (e) chapter If a suit is wider this filed (“Language interpreted cannot be both a apart meaning from context. The the em- employees, viewed appears ambiguous word that immediately shall be dis- ployees clear when the isolation become missed on the of a motion analyzed of the terms light word is unit. it.”).

surround If a filed unit based on con- duct within the of that general

II. and if it employee’s employment Section 101.106 could have been Act, chapter against 101.106 of Tort Section Claims Remedies,” to be entitled “Election of contains considered subsections, separate six each of

363 ee’s On capacity only. providing for dismissal of one when both motion, sued). the suit are employee shall dismissed un- purpose Another of the statute is to plaintiff plead- less the files amended plaintiffs encourage pursue claims based ings dismissing and on a government employee’s conduct with- unit as de- employment fendant on or day before the 30th Garcia, unit. See 253 after the date the motion is filed. (“[T]he S.W.3d at 657 Tort Claims Act’s (em- 101.106 Tex. Civ. Prao. & Rem.Code election scheme is protect gov- intended to added).4 phases ernmental employees by favoring their early dismissal a when claim regarding I agree with the Court that the principal same matter is also made against purpose of section 101.106 is to force employer.”). Subsec- choose, early irrevocably, and (e) tions directly and most operate to seeking between recovery govern from a end, achieve this adopting procedures for employer mental or its individu swift dismissal of the ally. See in such Mission Consol. Indep. Sch. Garcia, (Tex. suits. 653, Dist. v. See 253 S.W.3d 657 Prao. & Rem.Code (“The 2008) (f). § 101.106(e), (a) apparent (c) revision’s purpose Subsections and was to force a to decide at the also serve this purpose by preventing sub- outset an employee whether acted sequent inde suits employee. See pendently liable, solely and is thus or act (c). § 101.106(a), id. ed within the such together, Taken the subsections of sec- unit is vicariously 101.106 “force a at decide liable, thereby reducing the resources that the outset whether an employee in- acted government employees and its must dependently liable, solely and is thus or defending use in litigation redundant and acted general scope of his or alternative theories of recovery. By re her employment government such that the quiring a plaintiff to make an irrevocable is vicariously liable” for harm the em- at

election the time suit is filed between Garcia, ployee caused. 253 S.W.3d at 657. suing unit under decision, Based on that re- Tort or proceeding Claims Act against the quired “to make an irrevocable election alone, section 101.106 narrows the time suit is filed between suing delay issues for trial and reduces and governmental unit under the Tort costs.”). Claims duplicative litigation Every pro Act or proceeding against the employee vision operates to ensure Depending alone.” Id. this effect. on which choice Civ. Prao. & plaintiff makes, 101.106 (prohibiting recovery against one more of section one after obtaining suit or judg apply 101.106’s subsections will to achieve other, ment or settlement purposes. statute’s (a), (c), (e), apply (Tex.2008), Subsections S.W.3d suits claims that are or could have been and “even if the Act does waive immuni- chapter,” ty” or filed "under Velasquez, suit. Franka v. interpreted (Tex.2011). we have to include “all tort theo- Subsections unit, alleged (d), ries a judgments which address together against government whether it is sued alone or its are not limit- employees,” Indep. Mission chapter.” Consol. Sch. Dist. ed to those "under this ployee. a suit Unlike A. Suit mental If elects to sue reflect that necessarily does not employee tor- for harm that tal unit em- whether the plaintiff the has decided (a), caused, which then subsection tiously the ployee acting within or outside chapter suit under addresses “a unit,” may applies. employment. plaintiff a governmental 101.106(a). § & Rem.Code employee’s the sue Tex. PRAC. Civ. (a), plaintiff who subsection the (thus Under implicating governmen- the capacity cannot governmental the unit elects to sue the vicariously liability) or in tal unit’s the deci- employee: later to sue the decide (thus capacity individual seek- employee’s governmental sue the unit “consti- sion to liable) employee personally to ing hold by plain- tutes an irrevocable election capacities. or in both any immediately and forever bars tiff and (b)’s excep- its 1. bar and Subsection recovery by plaintiff or suit tion any individual of the regarding subject same mat- tal unit allegations, Regardless

ter.”5 Id. to sue the plaintiff chooses (b), employee, ernment then subsection governmental B. both the Suit against any “a em- which addresses its unit and unit,” ployee governmental applies. aof govern- If both a plaintiff a elects sue See Prao. & Rem.Code its employee, mental unit and then subsec- 101.106(b). § corollary aAs to subsection (e), tion which addresses a suit “under this (a), plaintiff provides governmental chapter against both unit a government who chooses sue any applies. employees,” and its later decide to sue the ee cannot 101.106(e). § & Prao. Civ. em- (e) mental unit: the decision sue the necessarily prohib- does an irrevocable election proceeding against ployee it a from both de- “constitutes fendants, if the unit governmental but files immediately and forev- by a motion to dismiss the claims recovery any plain- er bars suit or employee, immediately “shall those claims governmental regard- tiff unit (e) be dismissed.” Id. Subsection thus ing subject matter.” Id. same “protect[s] employees by fa- however, (a), subsec- Unlike early voring their when a claim dismissal exception: provides regarding subject the same matter is also government employee who sues a cannot employer.” made sue or from the unit recover Garcia, Upon at 657. dis- unit “unless consents.” missal of the added). man- (emphasis Id. Because “the only unit as the defendant. remains government conveys ner in government C. em- Suit through to suit is consent Constitution ployee laws,” state we held in Garcia that case, exception applied did Finally, present as in against governmental elect sue em- not bar claims (c), Similarly, recovery any employee of the same under subsection the settle- regarding "immediately ment of such a claim will the same 101.106(c). § bar Id. forever the claimant from matter.” 101.106(f). If the when the had “consented moves to (f), waiving immunity Tex- the trial suits” under the dismiss under court on Act. See Rights Human grant Commission “shall” motion and dismiss the the em- provides an exception “consent” that ployee “unless the files amended (b)’s bar includes pleadings dismissing immunity, “provided proce- waivers of unit as defen- dures the statute have outlined dant or before day the 30th after the met.” Id. date motion is filed.” Id. If plaintiff timely plead- the files amended (f)’s provi- 2. dismissal dismissing ings employee the and naming

sions defendant, the unit as the govern- elects to sue plaintiff When a proceed only against govern- suit will (f) may also employee, ment subsection mental unit. (f) applies a suit apply. Subsection when employee govern- “is filed however, may, plaintiff The decline to on mental unit based conduct within amend the to a response mo- general employee’s employ- of that scope (f). tion to The dismiss brought ment could have and if it assertion suit employee’s that the is based under this chapter on conduct within the scope Prag tal unit.” Tex. Civ. & Rem.Code employment ee’s does not make it so. The “any have held tort We complained-of issue of whether the conduct government claim against the employment within the scope occurred section purposes ‘under’ the Act finally will have been adjudicated when 101.106, if the Act waive even does not plaintiff decides to dismiss the whether immunity” for claim. Franka Ve- employee and sue the governmental unit (Tex.2011). lasquez, 375 Franka, instead. As we noted in once an Thus, applies while to all files a employee motion to dismiss under government sub- employee, (f), thirty days has when applies “whether to and sue acquiesce decide general ment “acted within employee instead,” scope employment of his could mandate court does not that the trial rule is, have been under the Act—that on motion time. within that his claim is in tort and not under another 380. be fact may S.W.3d at There issues independently statute that waives immuni- jury that a must resolve establish ty.” Id. at 381. the conduct was within whether at issue See, employment. e.g., has previously explained, As the Court Good- 101.106(f)’s Mayes, are met & year “section two conditions Tire Rubber Co. v. (Tex.2007) negligence (concluding every almost government employee,” employee so a matter of law that was not employee-de- usually within when there fendants are entitled to dismissal Franka, or upon conflicting conflicting of a motion. was “no evidence parties agree genuine 332 S.W.3d at set inferences to raise a issue of fact”). the trial applies to the case. material And even if court present rules on motion “considered to be to review employee thirty days, ruling official ca- Franka, Prag S.W.3d at 380 pacity only.” appeal. & on Cf. end his would in turn ob- mental if the (observing that “[e]ven employee].” Ante against [the waiver of ruling court’s [on the trial tained filed a motion But when whether having to decide immunity] before (f), under subsection be no dismiss there would to dismiss course: yet a third attempted pursue upheld ruling would be that the assurance file an amended choosing not to instead after issue appeal, especially to file an amended choosing pleading, government.”). relitigated with dismissing pleading that, files after an This means unit as defen- (f), a under subsection a motion to dismiss dant, an amended filed he with the same choice is faced unit as adding pleading (a) and under subsections otherwise faces defendant, the em- dismissing without he must choose he first files suit: ployee.6 recovery against avenue of single — a time government or that, failing to do what —at hold I would uncertainty as to which there when do, (f) plain- him to the allowed subsection recovery right is the one avenue of opportunity the subsec- tiff forfeited (f), like case. Subsection the facts of the (f) him to the given have add tion would as a provision the election-of-remedies in defendant. And unit as governmental whole, plaintiff Act to forces a Tort Claims (f)’s authoriza- of subsection the absence the em- early whether decide unit, subsec- governmental tion to add the employ- the ployee acted within (b) (which any plaintiff time applies tion ment, than plaintiff, rather and makes the plain- forever bars employee) sues an employee, unit or its unit. claims tiffs if the decision is consequences bear

wrong. (f) exception an A. Subsection (b). subsection III. (b) terms, both subsections By their own

Application (f) plaintiff gov- sues a apply and case, although ap- the latter employee, ac- ernment as the Court present In the on con- only when that suit is based “originally plies elect- knowledges, plaintiff only against duct bring [the ed to gov- could have been employee] filed his

ee]” “[o]nce [the dismiss, the Tort Claims Act. faced a ernmental unit under plaintiff] motion to [the (1) PRAC. & employee] dispute [the choice: (b) (f). 101.106(b), provides § urge acted his official a suit plaintiffs filing that the deny employee’s] motion to court to [the “immediately and forever dismiss, his claims pursing thus (2) recovery by plaintiff alone, bars suit or pursue his employee] [the regarding unit employer], govern- [the claim Although plaintiff employee. contends pleading titled plaintiffs amended 6. The “substantially Amended Petition and Mo- "Plaintiff's First com- Court that he at least this Franklin Bar- tion to Dismiss as to Defendant (f)'s requirement plied” with subsection num," body prayer but employee, I claims dismiss the request pleading, did not dismiss- he agree conclusion that did with the Court's employee, and continued to al of the instead not. from, against, and seek relief assert claims gov- the same matter unless the in this case did ernmental unit consents.” Id. requirements not meet that would 101.106(b). expressly Yet subsection permitted have him to avoid the bar respond authorizes the (b) subsection and sue the by filing motion to dismiss I unit. would therefore hold that subsec- pleadings naming govern- tion plaintiffs bars the claims mental defendant. Id. “unless in mental unit consents.” case pro- contends that subsection (b)’s exception vides limited to subsection exception C. The “consent” to subsec- bar, arguing that this construction apply. does not way both give effect to subsection (b)’s Before applying subsection “con- (b)’s prohibition (against suing the govern- sent” exception, the court of appeals unit) (f)’s mental permis- reached the I same conclusion do above— (to unit). sion sue the I because the plaintiff failed to comply with agree with the governmental unit and (f), his claims were barred the courts of have appeals that held (b). 2011 WL at *8. exception the bar But the court held that ex- the “consent” (b).7

ception applied, and subsection did B. The trigger failed to sub- bar the (f)’s exception section to subsection ernmental because the Tort Claims (b). immunity Act waives for suits based on a governmental employee’s negligent opera- expressly authorizes tion of a motor-driven vehicle. See at id. to assert claims *11; Tex. (despite ernmental unit the bar in subsec- & Civ. Prac. Rem.Code 101.021(1) (b)) § (waiving governmental immu- only plaintiffs tion if the nity). The pleadings both court read our decision in “dismiss the Gar- cia add to hold that the defendant.” “consent” referenced 101.106(f) (b) & in subsection the legislative includes Prac. added). (emphasis By failing to immunity through dismiss waiver of the Tort See, e.g., Tex. Tech comply procedural Univ. Health Sci. Ctr. v. "did not with the Williams, 508, Therefore, (f). 344 (Tex.App.-El requirements S.W.3d 513 of subsection 2011, ("[T]he pet.) (b) protections Paso no of subsection were still avail unit].”); immunity 'any recovery' unit's from Dep’t suit or to [the able (b) Calderon, 918, Agric. retained thus under Subsection remains v. 221 S.W.3d 923-24 of subject 2007, (hold to (Tex.App.-Corpus pet.) removal under Subsection if the Christi no plaintiffs defendant for of ing initially moves dismissal that who sued him."); Univ. Tex. Health and amended add to unit in of Webber-Eells, Sci. Ctr. at employee's San Antonio v. 327 response to motion to dismiss 233, 2010, (Tex.App.-San proceed against governmental Antonio not could unit: pet.) (dismissing against governmental no [plaintiffs’] “because of comply failure to 101.106(f), after comply failed to [governmental with sub- section re unit] (0); Indep. section Huntsville immunity Sch. Dist. tained its from suit derived from 390, Briggs, 101.106(b), (Tex.App.-Waco [plaintiffs] section lost 2008, denied) pet. (holding 101.106(f) opportunity provided by that who section to government employee [governmental sued place amended to name the of unit] [the lawsuit.”), response add unit in employee] as the defendant in Frarika, disapproved motion pursue ee's to dismiss could not grounds other against governmental claims unit because 332 S.W.3d at n. 67. chapter.” See the court noted that Although Act. Claims Tex. Civ. Prac. & Rem.Code pro- “seems 101.106. construction the statute with the lan- and inconsistent blematic that this are at least two reasons There 101.106,”it concluded that of section guage First, important. claims distinction none- by that construction it was “bound statutory waivers of under other brought *11; at theless.” See WL set of immunity subject are different (“In addition, this *10 con- also id. at see This distinc- jurisdictional requirements. term ‘consents’ subsec- struction of the claims un- key plaintiffs because tion is 101.106(b) any eliminate real seems to tion Act are der the Tort Claims provision because effect 101.106(e) (f), while claims section suing always prohibited have statutory waivers brought under different employers immunity Second, failing immunity are not. differently, Stated has not been waived. under distinguish between 101.106(b)only subsequent bars Act and claims the Tort Claims employers that against governmental only ignores a different statute through the doctrine already were barred specific statutory Tort Claims Act’s disagree I immunity.”). of sovereign but also renders subsec- requisites opinion in Garcia mandates this Court’s meaningless. ap- As court tion “problematic” construction subsec- recognized, under its construction of peals (b), is “inconsistent with the tion “consent,” claim which and would render language” of tal falls within subsec- is waived superfluous. entirely (b)’s thus, exception; sub- tion “consent” The Court held Garcia subsec- already bars suit are (b)’s exception “consent” includes a immunity. barred immunity, we but were waiver *10. I 2011 WL would with a waiver under dealing that case in a manner construe consent Rights on Human the Texas Commission (b) meaningless. that renders Act, not a waiver under Tort Claims *10; Franka, WL at See 2011 cf. Act, section 101.106. which itself contains (“Statutory 332 S.W.3d at 393 at 660. Based on this distinc- if it pointless read as should tion, present unit in the reasonably susceptible to con- another argues under subsection case that consent struction.”). (b) a waiver under a only can come from State, Instead, I would hold that the on than the Tort Act. statute other Claims units, behalf of its consents I disagrees. Ante at 356. also The Court 101.106(b) meaning to unit disagree with the complied with all only when claimant has only in a “consent” can be found statute requirements filing jurisdictional than the Tort Act—subsec- other Claims immunity-waiving statute. See under (b) I contains no limitation —but such (“[T]he Legisla- at 660 S.W.3d claims treats agree ISD, ture, on behalf has consented brought under the Tort Claims Act’s waiv- TCHRA, pro- to brought suits under differently than claims ers procedures- the stat- vided the outlined in brought other waivers of under met”) added). (emphasis ute have been immunity. expressly The statute distin- brought For the Tort Claims and limita- guishes requirements between Act, includes with section compliance to under the apply only tions claims i.e., 101.106(f), who plaintiff which allows a has Tort Claims claims “under this Act— government on the plaintiff sued based to both sue conduct within the TCHRA, but like the to substitute the contain other limitations on the claimant’s only tal unit as defendant if “the See, cause of action. e.g., Tex. Lab.Code pleadings dismissing files 21.208, §§ 21.252 (requiring plaintiffs to pursue administrative relief before thirty as defendant” days. suit); §id. 21.211 (imposing different elec- § Tex. Civ. Peac. & A Rem.Code plaintiffs). tion-of-remedies TCHRA who comply does not with this (b) Although subsection reaches more statutory requirement have con- does not just brought than claims under the Tort to amend the sue a gov- sent Act, it Claims exception contains an if id.; ernmental unit under the Act. See see governmental unit consents to suit. See Franka, (con- also n. 9 101.106(b). Tex. Prac. & Civ. cluding that a summary judg- motion for Absent this consent exception, subsection 101.106(f) based on section ment asserts any plaintiff would bar who has sued a immunity).8 claim In oth- government employee from or suing also words, (f) provides er consent recovering the government only to sue if the (f)), (subject to subsection regardless of with complies and the Act’s whether the sued under the Tort jurisdictional requisites. other Act, TCHRA, Claims or another immu- This construction with is consistent our (b)’s statute. nity-waiving con- holding in Garcia. The claims TCHRA permits sent exception immunity- each that the Court held subsection did not waiving statute determine independent- bar Garcia were subsec- ly permit whether (e) (f). (e) tions or Subsections ernment its employee both or re- apply to claims that could have are or other, strict one or suit to place under the Tort Claims Act. some restriction other consistent Tex. Civ. Prac. & Rem.Code statute’s own scheme for granting right 101.106(e), (f); Garcia, S.W.3d at to sue the unit. we (b), hand, 658-59. Subsection other on the concluded in Garcia that subsection is not limited to under the reached the TCHRA claims but Claims Tort Act. See Prac. & Civ. “provided did not bar those claims 101.106(b); Garcia, 253 Rem.Code procedures outlined in the statute have S.W.3d been 253 met.” S.W.3d at 660. (e) (f) Subsections in operate con- (a) case, In junction present with the subsection subsections would plaintiffs preclude Tort not bar the Tort Act Claims Act Claims pursuing claims the against govern- against governmental both claims the if unit mental unit employee. and its Other stat- procedures “the outlined in the statute utory immunity may permit waivers a specifically, been if he had ha[d] met”— City Esparza, 8. See also requirements bringing Houston v. 369 tional for suit. For 238, Act, (Tex.App.-Houston 249-50 [1st claims under the Tort the Claims 2011, 30, 2013) pet. Aug. Dist.] denied jurisdic- claimant must meet all of the Act's ("[S]ubsection (b)'s exception per- By plain language ‘consent’ tional constraints.... nature, bring govern- a against mits claimant to a very pro- the election-of-remedies constraint.”) complied jurisdictional mental unit if the claimant has vision is such (citations omitted). all authorizing jurisdic- with statute’s 370 however, (f), does ployee”). procedure allowed

complied the (f) employee’s based substituting say the not that a suit on an subsection is, Be- unit as the defendant. id. the mental conduct within be, then the against cause he sued the or is “a suit considered response contrary, to dismiss the unit.” To the failed motion, the has employee’s the a suit “is to be states that such considered jurisdictional requirements not met employee’s in the against necessary Legislature’s con- trigger only.” capacity official Prac. & added).9 101.106(f) under to sue sent (emphasis the Act. true, notes, that we It is as the Court against “a suit offi- have held that state rewrites statute to D. The Court merely ‘another an way pleading cial is hold otherwise. against entity [the action of which that, despite The holds Court ” agent,’ entity an official] is (b)’s bar, permits suit, “the in interest” in such a party real governmental unit to against the survive “is, respects and that a suit in all such complies with whether or not the name, entity.” other than a suit (f)’s view, In requirements. my Franka, (quoting at n. 68 majority reaches these conclusions Graham, 165- Kentucky U.S. rewriting only by substantially (1985)). 66, 105 S.Ct. L.Ed.2d the exception in a manner that causes still pleadings, But such a suit is to swallow rule. government employee, majority repeatedly says that sub- government employee and the is still “provides” that a suit which it suit, why named to the which is party (that is, action applies a tort based on (f) says it is to be “considered general of em- conduct employee’s have been ployment could only,” that it is official rather than unit) “is consid- “considered to to have been the govern- ered filed tal unit.” unit, employee.” mental Ante (“under 352; essence, also at 366 In the Court construes see ante subsec- (f), phrase is considered to have “is considered to be [such suit] tion capaci- brought against (emphasis ty only” effectuating sub- employee”) orig- automatic inal); (referring ante at stitution of the unit for “[subsec- (f)’s that the as a express so suit is treated such classification (to unit”) suit as one (character- (a) added); applies) than a (emphasis ante at 358 which subsection rather (to (f) against employee that the which sub- izing “clarifying (b) applies). contrary a is ‘considered to be section But this is against’ suit] [such itself, previous the not the em- to our construction of subsection (ob- (Tex.2011) lasquez, provision meaning- 9. This of the statute is not 332 S.W.3d less; employee if even the does file a not serving public employees tradition- that were dismiss, prevents plaintiff to the motion it torts, ally personally liable for their even own recovering against government a em- employ- if the torts occur within the of ployee personally for tortious conduct within ment). scope of employment. the See Franka v. Ve- (f). See, e.g., only,” Legislature Univ. Tex. Health Sci the meant that the suit Bailey, at San “is to against Ctr. Antonio considered be the (Tex.2011). In Bailey, only,” we held mental unit Legislature then the that, of the “is considered to be” would not because have needed to say that the (f), effect, plaintiff clause pleadings “[i]n must file amended plaintiffs] employee], they “naming [the sued the governmental [the unit as defen- unit],” dant,” ex- [the sued but we nor would it necessary be for the pressly to “[substitution noted dictate employ- dismissal of the [governmental as the ee. defendant was unit] automatic; employee] re- [the (f) written, As expressly quired to file a motion.” Id. states that the substitution of defendants importantly, holding

More that subsec- employee occurs if the files motion (f)’s language “is considered to be” to plaintiff dismiss and the timely files automatically somehow substitutes the pleadings the substituting defen- employee Otherwise, unit for its is con- dants. See id. it remains (f), trary to the of subsection suit against employee, the but because it is renders the second sentence of based on conduct within the of em- (f) superfluous.10 ployment, See it is Prac. against “considered to be & If, by saying the employee employee’s official ca- suit “is pacity only.” considered be the em- The fact the suit ployee employee’s capacity the employee is considered to be ostensibly 10. The ployee Court identifies a conse- plaintiff shall be dismissed unless quence failing comply dismissing with the second pleadings files amended the em- (f): consequence ployee naming sentence of subsection "the unit” to failing government mean "the for the shall be substitute response [regardless to an dismissed whether ] sub- dismissing (assuming files amended motion to the em- dismiss ployee unit.” capacity) was sued in his official is that suit shall dis- responds The Court to this criticism stat- 358; Ante missed.” see also ante at 359 ing holding requires that its dismissal of the (“[i]f [dismiss fails if permits even it ], pursuant ee to subsection and the em- proceed against the case to ployee only, was sued in his official unit. Ante at 373. But under Court's dismissed.”). then the case must be But the construction, (and always this suit has holding Court’s consistent with these been) statements —the Court holds the trial employee. not a suit Under that appeals properly court court allowed construction, dismissal of the al- proceed plead- on his amended (a), ready required by subsection which im- ings against without dismiss- mediately pro- and forever bars a suit from re-filing al of this of the claims ceeding against governmental employee government. the Court does not upon filing same claims actually apply consequence failing "the governmental employer. See Tex Civ. & Prac. identifies; instead, employee" dismiss the 101.106(a). Additionally, Rem Code consequence. there is no The Court else- why explanation Court offers no as to that, construction, recognizes where under its provide specific proce- would for, it makes no difference whether the impose thirty-day dure time limit complies on, with subsection or not—dismissal plaintiff's voluntary dismissal of the required filing upon government employee "is the of Legislature if the in- regardless any consequence a motion to dismiss of further tended that there would be no by plaintiff.” ignoring action the procedure Ante for time both and the against the Court construes "the suit the em- limit. all, that despite that at the fact employee’s require not it The Court’s construc- expressly does. Leg- capacity only is the reason (f) renders subsection tion of subsection substitution; it is not permits islature (b) Act plain- for Tort Claims meaningless mandated expressly a to treat reason (b) expressly prohibits tiffs. Subsection superfluous procedure for substitution filing suit or recover- plaintiffs such and optional. governmental unit after ing against a by the statute also rewrites The Court regarding employees of one its that, has holding “while 101.106(b). §Id. subject matter. the same procedure for dismissal set out construction, prohi- this Under Court’s acting employee who was to a who apply bition does not this employment, pro- of within the course Act on con- brings claims under the based may is immaterial to whether cedure scope employment. of But duct within the proper defen- be maintained only Act claims are the Tort Claims those Ante at 352. government.” dant —the (b) that subsection bars —suit says that the “suit Similarly, the Court governmental unit based on conduct out- pro- unit should already scope employment side to, plaintiff was entitled ceed because the by immunity, and barred did, his to assert amend generally lia- vicariously not employers are Act] Claims claim [Tort scope for conduct outside ble view, my Ante at 352. In ernment.” id. regardless. ignore the lan- simply statements these Stores, 101.021; Minyard Food Inc. (f), effectively striking guage of subsection (Tex.2002) Goodman, 80 S.W.3d to file portion out the that allows only (observing employer generally pleadings dismissing the em- “amended acts course for liable ployee and employment). day the 30th as defendant on before responds that its construction The Court the motion is filed.” after date does render subsec- 101.106(f)(empha- Prac. & Civ. (b) meaningless, rather it “miti- added). open- is not an sis imposed by gate[s] consequences the harsh bring ended invitation (b) respect Claims [Tort suing unit after Although Ante Act] claims[.]” employee; pro- unit’s rather “mitigates” Court uses the word single, specific procedure vides “eviscerates,” any identify it does not than government em- plaintiffs who have sued a in which subsection could bar way ployee for conduct within Act its Tort Claims under construction of their employment can avoid dismissal already claim the statute unless the by adding case entire immunity. The barred voluntarily dis- unit as a defendant and that, imply intend to while Court employee. missing their (b) mean- renders subsection construction important to note that the Court It is Act plaintiffs, for Tort Claims sub- ingless never holds or even contends have could still some effect (f)’s re- plaintiff complied with subsection under other waiv- plead- quirement timely he amend his because such suits are ers of (f). ings name the But Court dismiss Instead, that, already “consent” governmental unit as defendant. held has not bar does just exception, construes subsection Court under other waiv- as claims unit defendant. Oth- erwise, that the immunity “provided proce- requires subsection ers dismissal have dures outlined the statute the suit and does not And, at met.” 660. authorize adding gov- course, if immunity-waiving unit, (b) statute’s ernmental and subsection bars met, prerequisites suit are By such holding claims. that a suit by immunity anyway. claims are barred against an employee actually is a suit (“Statutory 311.034 the Court Tex. Gov’t Code suit, including to a prerequisites provi- rewrites subsection and renders subsec- notice, jurisdictional require- (b) sion are tion essentially meaningless. Because ments all suits case did not timely file entity.”). “amended dismissing the em- ployee (b) effect, have any

To must defendant,” I would hold that subsection suit when Act’s waiver of im- prohibit (f) does not authorize his amended plead- munity would otherwise allow it. It ings, and his claims when, unclear under the Court’s construc- mental unit must be dismissed. tion, ever bar an oth- would erwise-allowed suit after of suit Yet, employee. exactly

ernment expressly prohibits

what and decisive terms. See

broad 101.106(b). Moreover, & Prac. assuming

even that the Court’s construc- effect, leaves some ZANCHI, M.D., Michael A. Michael A. suits, only on Claims Act albeit non-Tort Zanchi, M.D., P.A., Region and Paris (b)’s to square is difficult lan- P.A., Anesthesia, Petitioners, al guage apply- we have construed as —which “any ing unit,” Garcia, 659—with an LANE, Reginald Individually Keith impact that is to claims that limited are Representative as Personal of the Es Act in under the which it Cynarra Ross, tate of Juameka De appears. ceased, al., Respondents. et No. 11-0826.

IV. Conclusion Supreme Court Texas. Section 101.106of the Tort Claims Act is Argued 2013. Jan. construe, complex and difficult to but I Aug. Decided done it believe Court has too much statute, damage. Under government employee based on conduct the scope is still a against government employee. That why, if files a motion to

dismiss, the says must

amend to dismiss the and name

Case Details

Case Name: Texas Adjutant General's Office v. Michele Ngakoue

Court Name: Texas Supreme Court

Date Published: Aug 30, 2013

Citation: 408 S.W.3d 350

Docket Number: 11-0686

Court Abbreviation: Tex.