Texas Adjutant General's Office v. Michele Ngakoue, 408 S.W.3d 350

Lead Opinion

Justice LEHRMANN

delivered the opinion of the Court,

in which Chief Justice JEFFERSON, Justice HECHT, Justice GREEN, and Justice DEVINE joined.

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

I. Background

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

TAGO subsequently filed a plea to the jurisdiction and motion to dismiss, claiming that Ngakoue failed to comply with the requirements of subsection (f) by not dismissing Barnum in his amended pleading, and arguing that suit against both Barnum and TAGO should be dismissed as a result of that failure. Specifically, TAGO argued that Barnum should be dismissed pursuant to subsection (f), while TAGO itself should be dismissed pursuant to subsection (b). See id. § 101.106(b) (“The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.”). The trial court denied TAGO’s plea and motion to dismiss, and both TAGO and Barnum timely appealed.

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

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

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

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

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(f)If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

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

When interpreting a statute, our goal is to ascertain the Legislature’s intent. In re Lopez, 372 S.W.3d 174, 176 (Tex.2012) (orig. proceeding). The best guide to that determination is usually the plain language of the statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). But we must view the statute as a whole, id. at 866, and “[w]e must endeavor to read the statute contextually, giving effect to every word, clause, and sentence,” In re Office of Attorney Gen., — S.W.3d -, -, 2013 WL 854785 (Tex.2013). We may consider the “object sought to be obtained” by the statute as well as the “consequences of a particular construction.” Tex. Gov’t Code § 311.023(1), (5); see also State v. Hodges, 92 S.W.3d 489, 494 (Tex.2002).

In Garcia, we observed that section 101.106 is intended to “force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Garcia, 253 S.W.3d at 657. In turn, section 101.106’s election scheme favors the expedient dismissal of governmental employees when suit should have been brought against the government.¹ Id. An early determination of who constitutes the proper defendant “narrows the issues for trial and reduces delay and duplicative litigation costs” by removing a plaintiffs ability “to plead alternatively that the governmental unit is liable because its employee acted within the scope of his or her authority but, if not, that the employee acted independently and is individually liable.” Id. Thus, when determining the meaning of section 101.106’s various provisions, we must favor a construction that most clearly leads to the early dismissal of a suit against an employee when the suit arises from an employee’s conduct that was within the scope of employment and could be brought against the government under the TTCA.

Central to the resolution of this case are subsections (b) and (f). Subsection (b) provides that filing any suit against an employee of a governmental unit is an “irrevocable election” that “immediately and forever” bars suit against the governmental unit regarding the same subject matter, “unless the governmental unit consents.”² Tex. Civ. Prac. & Rem. Code § 101.106(b). We held in Garcia that “consent” under subsection (b) includes statutory waivers of immunity, “provided the procedures outlined in the statute [waiving immunity] have been met.” Garcia, 253 S.W.3d at 660. Specifically, we held that the plaintiffs’ suit against an employee under the Texas Commission on Human Rights Act [TCHRA] did not bar suit against a governmental unit regarding the same subject matter because the Legislature had consented to suit via the waiver of immunity contained in that statute.³ Id.; see also Tex. Lab.Code §§ 21.001-556 (waiving immunity from suit under the TCHRA). TAGO argues that, pursuant to Garcia, “consent” under subsection (b) may only be found in statutory waivers of immunity found outside the TTCA itself.⁴ We disagree. Nothing in subsection (b)’s language suggests such a limitation, nor did we find one in Garcia. Rather, in that case, the plaintiffs common-law tort claims against the government were barred not because of subsection (b), but because they did not fall within the TTCA’s limited waiver of immunity, 253 S.W.3d at 658-59, while the TCHRA claims survived due to the separate waiver of immunity in that statute, id. at 660.

Ngakoue thus argues, and the court of appeals held, that because the underlying suit alleged damages resulting from an automobile accident caused by the negligence of an employee acting within the scope of employment, and because the Legislature has waived immunity for such suits under section 101.021(1) of the TTCA, the Legislature has consented to suit and, under Garcia, the bar in subsection (b) no longer applies. 408 S.W.3d at 355. TAGO responds that consent under subsection (b) requires not just a waiver of immunity, but also strict compliance with the procedures set out in the pertinent statute — in this case, section 101.106(f) of the TTCA. See, e.g., Univ. of Tex. Health Sci. Ctr. v. Webber-Eells, 327 S.W.3d 233, 242 (Tex.App.-San Antonio 2010, no pet.) (holding that plaintiffs failure to file amended pleadings substituting the governmental unit as a defendant in response to the employee’s subsection (f) motion barred subsequent suit against government unit following dismissal). Specifically, TAGO argues, and the dissent would hold, that subsection (f) requires a plaintiff like Ngakoue to both add the governmental unit and dismiss the employee in response to a subsection (f) motion to dismiss in order to avoid the bar to suit under subsection (b). Because Ngakoue added TAGO as a defendant but failed to dismiss Barnum, TAGO contends, Ngakoue failed to comply with subsection (f) and the bar applies. As discussed below, we need not reach the issue of whether the Legislature consented to suit under subsection (b) because, independent of the question of consent, subsection (b) simply does not apply here.

As discussed above, the bar in subsection (b) is triggered by the “filing of a suit against any employee of a governmental unit.” Tex. Civ. Prac. & Rem.Code § 101.106(b). Subsection (f), however, states that “[i]f a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter [the TTCA] against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only.” Id. § 101.106(f). We have recognized that “a suit against a state official is merely ‘another way of pleading an action against the entity of which [the official] is an agent.’ ” Franka v. Velasquez, 332 S.W.3d 367, 382 n. 68 (Tex.2011) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)) (alteration in original). Thus, “[a] suit against a state official in his official capacity ‘is not a suit against the official personally, for the real party in interest is the entity.’ ” Id. (quoting Kentucky, 473 U.S. at 166, 105 S.Ct. 3099). “Such a suit,” we have noted, “actually seeks to impose liability against the governmental unit rather than on the individual specifically named and is, in all respects other than name, a suit against the entity.” Id. (emphasis added) (citations, quotation marks, and alteration omitted). Thus, pursuant to subsection (f), a suit against a government employee acting within the scope of employment that could have been brought under the TTCA — meaning the plaintiff had a tort claim to assert against the government⁵ — is considered to have been brought against the governmental unit, not the employee.

Subsection (f)’s express classification of such a suit as one against the governmental unit is not empty language. As discussed in Franka, “public employees ... have always been individually liable for their own torts, even when committed in the course of employment, and suit may be brought against a government employee in his individual capacity” to the extent the employee is not entitled to official immunity.⁶ 332 S.W.3d at 383 (internal citations omitted). However, in enacting subsection (f), the Legislature “foreclose[d] suit [under the TTCA] against a government employee in his individual capacity if he was acting within the scope of employment.” Id. at 381. This furthers one of the primary purposes of both the TTCA generally and section 101.106 in particular — to protect governmental employees acting in the scope of employment. See Garcia, 253 S.W.3d at 656-57; see also Franka, 332 S.W.3d at 384.

Further, and in conjunction with that purpose, the Legislature’s choice of language in subsection (f) affects its interaction with subsection (b). Again, the bar to suit against a governmental unit in subsection (b) is triggered by the filing of a suit against an employee of the unit. Tex. Civ. PRAC. & Rem. Code § 101.106(b).⁷ But a suit against an employee in his official capacity is not a suit against the employee; it is, in all but name only, a suit against the governmental unit. Franka, 332 S.W.3d at 382 n. 68; see also Univ. of Tex. Health. Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401-02 (Tex.2011) (holding that a governmental employer may be substituted for the employee under subsection (f) after limitations has run because there is “no change in the real party in interest”). Such a suit therefore does not trigger the bar in subsection (b) to subsequent suits against the governmental unit regarding the same subject matter.

In arguing that the subsection (b) bar was triggered, TAGO relies principally on the second sentence of subsection (f), which provides: “[o]n the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Tex. Civ. Prao. & Rem.Code § 101.106(f). TAGO contends, and the dissent would hold, that this provision sets out a specific procedure that must be followed by a plaintiff — dismissal of the employee and addition of the government as defendant within thirty days of the employee’s filing the motion — to avoid the bar in subsection (b). We disagree. This portion of subsection (f) simply provides a procedure by which an employee who is considered to have been sued only in his official capacity will be dismissed from the suit.⁸ When such an employee files a motion to dismiss, he is entitled to dismissal, which will occur in one of two ways: (1) via the plaintiffs amended pleading substituting the governmental unit for the employee as the defendant; or (2) absent such an amended pleading, via the trial court’s order granting the employee’s motion and dismissing the suit against the employee.⁹ Id. But subsection (f) does not require any affirmative action by the plaintiff.

Thus, while the consequence of failing to substitute the government for the employee in response to an employee’s subsection (f) motion to dismiss (assuming the employee was sued in his official capacity) is that “suit against the employee shall be dismissed,” id., such failure does not bar subsequent suit against the government. Significantly, the procedure for dismissal of the employee in subsection (f) in no way modifies the remainder of the provision clarifying that, where a tort claim could have been asserted against the governmental unit under the TTCA, a suit against the unit’s employee involving conduct within the scope of employment is “considered to be against the employee in the employee’s official capacity only” — that is, the suit is “considered to be against” the governmental unit itself, not the employee. Id. Instead, subsection (f)’s procedure for dismissal independently serves section 101.106’s recognized purposes of ensuring early dismissal of governmental employees when suit should have been brought against the government and reducing the expense and delay associated with alternative pleading. Garcia, 253 S.W.3d at 657.

The same purposes are served by subsection (e), which applies when suit is filed against both a governmental unit under the TTCA and its employee. Tex. Civ. Prac. & Rem.Code § 101.106(e). In such cases, “the employee shall immediately be dismissed on the filing of a motion by the governmental unit.” Id. By filing such a motion, the governmental unit effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party. Further, subsection (e) does not provide for dismissal of the governmental unit, so when the employee is dismissed under that provision, the suit then proceeds solely against the government, assuming immunity is otherwise waived. See Garcia, 253 S.W.3d at 659 (where tort claims were asserted against an employee and a governmental employer, and TTCA did not waive immunity for the claims asserted, the employee would nevertheless have been entitled to dismissal on the government’s motion, and the TTCA claims against the government would not survive). TAGO is therefore correct in recognizing that, to the extent immunity is otherwise waived under the TTCA, a governmental unit cannot use subsection (b) to foreclose suit against it after having used subsection (e) to dismiss its employee from the suit.¹⁰ See, e.g., Esparza, 369 S.W.3d at 248 (“We reject the City’s contention that subsections (b) and (e) apply without reference to each other when a claimant sues both the government and its employee together, thus requiring the dismissal of both defendants.”).

In sum, subsection (f) does not require dismissal of the employee by the plaintiff to overcome the bar to suit against the government in subsection (b); rather, subsection (f) provides the TTCA plaintiff a window to amend his pleadings to substitute the governmental unit before the court dismisses the suit against the employee on the employee’s motion where appropriate. Tex. Crv. Prac. & Rem.Code § 101.106(f). If the plaintiff fails to substitute the government, and the employee was sued in his official capacity only, then the case must be dismissed. Id. But a suit against the governmental unit for which immunity is otherwise waived may go forward, just as a suit proceeds against the government when an employee is dismissed under subsection (e). Because subsection (f) classifies a suit against the employee who was acting in the scope of employment (where the suit could have been brought under the TTCA) as effectively constituting a suit against the government, and because subsection (f)’s procedural mechanism for dismissal of the employee does not affect this classification, a plaintiff who brings such a suit is not barred by subsection (b) from subsequently pursuing a claim against the governmental unit.¹¹

By contrast, TAGO’s and the dissent’s interpretation attributes to the Legislature a far harsher intent than is expressed in the statute. The dissent would force a plaintiff, who may not be in the position of knowing whether the defendant was acting within the scope of employment when suit against an employee was filed, to choose whether to proceed against the employee or the governmental unit within thirty days of the filing of a subsection (f) motion to dismiss. However, a plaintiff may not be able to obtain the information necessary to make such a decision within such a short time frame, and an erroneous decision, in the dissent’s view, would mean that suit is forever barred. But a central goal of the TTCA as a whole is to allow certain types of suits against the government; as noted above, the current version of section 101.106 became necessary because plaintiffs began suing governmental employees as individuals to avoid the TTCA’s limitations. Garcia, 253 S.W.3d at 656. Thus, while it makes sense to interpret the section as curtailing suits against employees that could be brought instead against the government, it would be illogical for the election-of-remedies provisions to prohibit the very suits the TTCA authorizes.¹² See Franka, 332 S.W.3d at 385 (noting that “restrictions on government employee liability have always been part of the tradeoff for the [TTCA]’s waiver of immunity, expanding the government’s own liability for its employees’ conduct”). The provisions of section 101.106 provide a number of avenues for dismissal of governmental employees and avoidance of duplicative litigation, but they generally favor a suit against the governmental unit when appropriate rather than wholesale dismissal of a plaintiffs otherwise-meritorious suit.

III. Application

In this case, Ngakoue originally elected to sue only Barnum, a TAGO employee. Barnum moved to dismiss under subsection (f), asserting he was acting within the scope of employment and that suit could have been brought under the TTCA. Once Barnum filed his motion to dismiss, Ngak-oue faced a choice: (1) dispute that Barnum acted in his official capacity and urge the court to deny Barnum’s motion to dismiss, thus pursuing his claims against Barnum alone; or (2) pursue his claim against TAGO, the governmental unit, which would in turn end his suit against Barnum. Ngakoue elected the latter, alleging in his amended petition that “Barnum was acting in the course and scope of his employment by [TAGO]” and that TAGO’s sovereign immunity was waived under the TTCA. By this election, Ngakoue implicitly conceded that he had sued Barnum in his official capacity only and that dismissal under subsection (f) was therefore appropriate. The trial court accordingly erred in denying Barnum’s motion to dismiss.

However, because Ngakoue’s suit was brought against Barnum in his official capacity only, the suit did not trigger the bar in subsection (b) to a TTCA suit against TAGO, nor did Ngakoue’s failure to dismiss Barnum in Ngakoue’s amended petition. Because the result contemplated by subsection (f) in this situation is dismissal of Barnum (the employee), TAGO (the governmental unit) properly remains as the sole defendant.¹³ Had the trial court properly granted Barnum’s motion to dismiss, section 101.106’s primary purpose — ensuring that suit proceeds against the proper governmental defendant early in the litigation — would have been satisfied.

IV. Conclusion

We hold that Barnum was entitled to dismissal under subsection (f) as a matter of law because it is undisputed that the suit against Barnum was based on conduct within the general scope of his governmental employment and could have been brought against TAGO under the TTCA. TAGO was not entitled to dismissal, however, because subsection (b) does not apply when an employee is considered to have been sued in his official capacity only, and because immunity was otherwise waived under the TTCA. Accordingly, the trial court correctly denied TAGO’s motion to dismiss, and we affirm the judgment of the court of appeals.

Justice BOYD delivered a dissenting opinion, in which Justice JOHNSON, Justice WILLETT, and Justice GUZMAN joined.

Notes

1 . We have recognized that section 101.106 was originally enacted to address the problem of plaintiffs suing governmental employees rather than the governmental unit itself in order to avoid the damage caps and other restrictions imposed by the TTCA, which apply only to suits against the government. Garcia, 253 S.W.3d at 656.

2 . We note that the bar in subsection (b) is not limited to suits under the TTCA, unlike other provisions in section 101.106. Compare Tex. Civ. Prac. & Rem.Code § 101.106(b), with id. § 101.106(a), (c), (e), (f) (referring to suits filed or claims arising "under this chapter [the TTCA]”).

3 . The Court noted in Garcia that "[w]hether Garcia ha[d] taken the necessary procedural steps to perfect her right to sue under the TCHRA is a matter the parties have not addressed.” 253 S.W.3d at 660.

4 . There is a split in the courts of appeals on this issue. Compare, e.g., Amadi v. City of Houston, 369 S.W.3d 254, 260-61 (Tex.App.Houston [14th Dist.] 2011, pet. denied Aug. 30, 2013), with City of Houston v. Esparza, 369 S.W.3d 238, 242-43 (Tex.App.-Houston [1st Dist.] 2011, pet. denied Aug. 30, 2013).

5 . In Franka, we held that, in the context of section 101.106, a tort claim may be “brought 'under' " the TTCA regardless of whether the TTCA waives immunity for that claim. 332 S.W.3d at 379. However, claims brought against the government pursuant to statutory waivers of immunity that exist apart from the TTCA are not "brought under” the TTCA. Garcia, 253 S.W.3d at 659 (quotation marks omitted).

6 . While the doctrine is not implicated in this case, public employees generally may "assert official immunity 'from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.’ ” Franka, 332 S.W.3d at 383 (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)).

7 . Correspondingly, under subsection (a), suit against a governmental unit under the TTCA — i.e., filing a tort claim against the governmental unit — bars suit against an "individual employee” of the unit regarding the same subject matter, regardless of whether immunity has been waived. Tex. Civ. Prac. & Rem.Code § 101.106(a); see Harris Cnty. v. Sykes, 136 S.W.3d 635, 640 (Tex.2004) (applying the pri- or version of section 101.106 to bar the plaintiff's claim against a governmental employee even though immunity was not waived under the TTCA for suit against the governmental unit).

8 . The dissent classifies subsection (f) as an "exception” to the bar in subsection (b) requiring strict compliance with subsection (f)'s procedures. 408 S.W.3d at 356. This construction improperly inserts language into one or both provisions and ignores the fact that, as discussed further below, subsection (0⅛ procedures are focused on dismissal of the employee, which is required upon the filing of a motion to dismiss regardless of any further action by the plaintiff.

9 . We therefore do not, as the dissent suggests, construe subsection (f) as "effecting an automatic substitution of the governmental unit for the employee,” such that the second sentence of the provision is rendered meaningless. See 408 S.W.3d at 370. If only in name, the suit has been brought against the employee, and procedurally the employee still must be dismissed, whether by the plaintiff's amended pleading or the trial court's order on the employee's motion. Tex. Civ Prac. & Rem.Code § 101.106(f).

10 .The dissent appears to agree that suit may proceed against the government when an employee is dismissed on the government’s motion under subsection (e). See 408 S.W.3d at 358. However, under the dissent’s interpretation of subsection (e) as containing procedural requirements that must be strictly followed, a plaintiff who sues both the government and an employee, but voluntarily dismisses the employee without the need for a motion by the government, is barred from proceeding against the government. Such a result is at odds with both the text and the purposes of the statute.

11 . Plaintiffs are still subject to any other limitations with respect to suing the government, such as the statute of limitations or other procedural requirements that must be satisfied under the TTCA.

12 . We disagree with the dissent that our interpretation of the statute renders subsection (b) meaningless. Unlike subsection (b), subsection (f) applies only to suits that could have been brought under the TTCA. Tex. Civ. Prac. & Rem.Code § 101.106(b), (f). While subsection (t) does mitigate the harsh consequences imposed by subsection (b) with respect to TTCA claims, that determination was made by the Legislature in choosing the language to include in subsection (f) in furtherance of the purposes of the statute.

13 . The dissent asserts that this holding belies our previous statement that suit against the employee must be dismissed if the plaintiff fails to amend his pleadings to dismiss the employee in response to the employee's motion. 408 S.W.3d at 370. Because Ngakoue added TAGO as a defendant before the trial court ruled on Barnum's motion, dismissal of the suit against Barnum, but not TAGO, is appropriate.

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Dissenting Opinion

Justice BOYD,

joined by Justice JOHNSON, Justice WILLETT, and Justice GUZMAN, dissenting.

The plaintiff in this case sued a government employee after they were involved in a car accident that they agree occurred within the scope of the employee’s employment with a governmental unit.¹ Two subsections of the Texas Tort Claims Act’s election-of-remedies provision apply to such a suit: 101.106(b) and 101.106(f). Subsection (b) provides that the filing of a suit against an employee of a governmental unit “constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.”² Subsection (f) says two things about such a suit: first, the suit “is considered to be against the employee in the employee’s official capacity only,” and second, upon the employee’s motion, the suit “shall be dismissed unless,” within thirty days, the plaintiff files an amended pleading dismissing the employee and naming the governmental unit as the defendant.³

In this case, after the employee filed a motion to dismiss, the plaintiff filed an amended pleading that kept the employee as a defendant and added the governmental unit as an additional defendant. The court of appeals held that, because the plaintiff failed to do what subsection (f) allowed, his claims against the employee must be dismissed, and the plaintiff has not appealed that holding. But the court of appeals went on to hold that the plaintiff’s claims against the governmental unit need not be dismissed, and the governmental unit has appealed that holding. The Court affirms, based not on the court of appeals’ reasoning or even on the plaintiffs arguments, but on a completely new construction of the statute. In my view, the Court substantially rewrites the statute to reach this result, revising the language of subsection (f) and rendering subsection (b) meaningless. Section 101.106 is admittedly difficult to construe, but reading the statute as a whole, and staying as true as possible to the language the Legislature enacted, I would hold that, because the plaintiff failed to do the only thing subsection (f) allowed him to do to avoid dismissal — that is, dismiss the employee and name the governmental unit as the defendant — his claims against the governmental unit must be dismissed. I therefore respectfully dissent.

I.

Statutory Construction

This case requires us to interpret and apply section 101.106 of the Tort Claims Act. In construing a statute, “[o]ur task is to effectuate the Legislature’s expressed intent.” In re Allen, 366 S.W.3d 696, 703 (Tex.2012). Our search for legislative intent begins with the statute’s language: “Legislative intent is best revealed in legislative language.” In re Office of Att’y Gen., — S.W.3d -, -, No. 11-0255, 2013 WL 854785, at *4 (Tex. Mar. 8, 2013). When the statute’s language is unambiguous and does not lead to absurd results, our search also ends there: “Where text is clear, text is determinative.” Id.; Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 438, 437 (Tex.2009). “Enforcing the law as written is a court’s safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers chose....” See Entergy, 282 S.W.3d at 443. We cannot add words into, or delete language from, a statutory provision unless doing so is “necessary to give effect to clear legislative intent,” because “[o]nly truly extraordinary circumstances showing unmistakable legislative intent should divert us from enforcing the statute as written.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex.1999).

In construing the statute’s text, we give the words their plain, ordinary meaning unless the statute indicates an alternative meaning. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011) (observing that statutory terms are given ordinary meaning unless assigned different meaning by statute or different meaning is apparent from context). But “plain meaning” does not mean devoid of context; to the contrary, we have always considered statutes “as a whole” rather than as “isolated provisions.” See id. at 441 (“Language cannot be interpreted apart from context. The meaning of a word that appears ambiguous when viewed in isolation may become clear when the word is analyzed in light of the terms that surround it.”).

II.

Section 101.106

Section 101.106 of the Tort Claims Act, entitled “Election of Remedies,” contains six separate subsections, each of which begins by describing the kind of “suit,” “claim,” or “judgment” to which it applies:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e) If a suit is filed wider this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prao. & Rem.Code § 101.106 (emphases added).⁴

I agree with the Court that the principal purpose of section 101.106 is to force plaintiffs to choose, early and irrevocably, between seeking recovery from a governmental employer or its employee individually. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.2008) (“The revision’s apparent purpose was to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the scope of employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery. By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs.”). Every provision of the statute operates to ensure this effect. See Tex. Civ. Prao. & Rem.Code § 101.106 (prohibiting recovery against one after filing of suit or obtaining judgment or settlement against the other, and providing for dismissal of one when both are sued).

Another purpose of the statute is to encourage plaintiffs to pursue claims based on a government employee’s conduct within the scope of employment against the governmental unit. See Garcia, 253 S.W.3d at 657 (“[T]he Tort Claims Act’s election scheme is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.”). Subsections (e) and (f) most directly operate to achieve this end, adopting procedures for swift dismissal of the employee in such suits. See Tex. Civ. Prao. & Rem.Code § 101.106(e), (f). Subsections (a) and (c) also serve this purpose by preventing subsequent suits against the employee. See id. § 101.106(a), (c).

Taken together, the subsections of section 101.106 “force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the government is vicariously liable” for the harm the employee caused. Garcia, 253 S.W.3d at 657. Based on that decision, the plaintiff is required “to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone.” Id. Depending on which choice the plaintiff makes, one or more of section 101.106’s subsections will apply to achieve the statute’s purposes.

A. Suit against the governmental unit

If a plaintiff elects to sue a governmental unit for harm that its employee tor-tiously caused, then subsection (a), which addresses “a suit under this chapter against a governmental unit,” applies. Tex. Civ. PRAC. & Rem.Code § 101.106(a). Under subsection (a), the plaintiff who elects to sue the governmental unit cannot later decide to sue the employee: the decision to sue the governmental unit “constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.”⁵ Id.

B. Suit against both the governmental unit and its employee

If a plaintiff elects to sue both a governmental unit and its employee, then subsection (e), which addresses a suit “under this chapter against both a governmental unit and any of its employees,” applies. See Tex. Civ. Prao. & Rem.Code § 101.106(e). Subsection (e) does not necessarily prohibit a suit from proceeding against both defendants, but if the governmental unit files a motion to dismiss the claims against the employee, those claims “shall immediately be dismissed.” Id. Subsection (e) thus “protect[s] governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.” Garcia, 253 S.W.3d at 657. Upon the dismissal of the employee, the governmental unit remains as the only defendant.

C. Suit against the government employee

Finally, as in the present case, a plaintiff may elect to sue only a government employee. Unlike a suit against a governmental unit, a suit against a government employee does not necessarily reflect that the plaintiff has decided whether the employee was acting within or outside the scope of employment. The plaintiff may sue the employee in the employee’s official capacity (thus implicating the governmental unit’s vicariously liability) or in the employee’s individual capacity (thus seeking to hold the employee personally liable) or in both capacities.

1. Subsection (b)’s bar and its exception

Regardless of the capacity allegations, when the plaintiff chooses to sue the government employee, then subsection (b), which addresses “a suit against any employee of a governmental unit,” applies. See Tex. Civ. Prao. & Rem.Code § 101.106(b). As a corollary to subsection (a), subsection (b) provides that a plaintiff who chooses to sue a government employee cannot later decide to sue the governmental unit: the decision to sue the employee “constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter.” Id.

Unlike subsection (a), however, subsection (b) provides an exception: a plaintiff who sues a government employee cannot sue or recover from the governmental unit “unless the governmental unit consents.” Id. (emphasis added). Because “the manner in which the government conveys its consent to suit is through the Constitution and state laws,” we held in Garcia that the exception applied and subsection (b) did not bar claims against a governmental unit when the Legislature had “consented to suits” by waiving immunity under the Texas Commission on Human Rights Act. See Garcia, 258 S.W.3d at 660. Thus, the “consent” that provides an exception to subsection (b)’s bar includes statutory waivers of immunity, “provided the procedures outlined in the statute have been met.” Id.

2. Subsection (f)’s dismissal provisions

When a plaintiff elects to sue a government employee, subsection (f) may also apply. Subsection (f) applies when a suit “is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit.” Tex. Civ. Prag & Rem.Code § 101.106(f). We have held that “any tort claim against the government is brought ‘under’ the Act for purposes of section 101.106, even if the Act does not waive immunity” for that claim. Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex.2011). Thus, while subsection (b) applies to all suits against a government employee, subsection (f) applies only when the government employee “acted within the general scope of his employment and suit could have been brought under the Act — that is, his claim is in tort and not under another statute that independently waives immunity.” Id. at 381.

As the Court has previously explained, “section 101.106(f)’s two conditions are met in almost every negligence suit against a government employee,” so employee-defendants are usually entitled to dismissal upon the filing of a motion. See Franka, 332 S.W.3d at 381. The parties agree that subsection (f) applies to the present case. Thus, this suit is “considered to be against the employee in the employee’s official capacity only.” Tex. Civ. Prag & Rem.Code § 101.106(f). If the employee moves to dismiss under subsection (f), the trial court “shall” grant the employee’s motion and dismiss the plaintiffs suit against the employee “unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Id. § 101.106(f). If the plaintiff timely files amended pleadings dismissing the employee and naming the governmental unit as defendant, the suit will proceed only against the governmental unit.

The plaintiff may, however, decline to amend the pleadings in response to a motion to dismiss under subsection (f). The employee’s assertion that the suit is based on conduct within the scope of the employee’s employment does not make it so. The issue of whether the complained-of conduct occurred within the scope of employment will not have been finally adjudicated when the plaintiff decides whether to dismiss the employee and sue the governmental unit instead. As we noted in Franka, once an employee files a motion to dismiss under subsection (f), the plaintiff has thirty days to decide “whether to acquiesce and sue the government instead,” and the statute does not mandate that the trial court rule on the motion within that time. 332 S.W.3d at 380. There may be fact issues that a jury must resolve to establish whether the conduct at issue was within the scope of employment. See, e.g., Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex.2007) (concluding as a matter of law that employee was not within scope of employment when there was “no conflicting evidence or conflicting set of inferences to raise a genuine issue of material fact”). And even if the trial court rules on a subsection (f) motion within thirty days, the ruling is subject to review on appeal. Cf. Franka, 332 S.W.3d at 380 (observing that “[e]ven if the plaintiff obtained the trial court’s ruling [on waiver of immunity] before having to decide whether to dismiss the employee, there would be no assurance that the ruling would be upheld on appeal, especially after the issue was relitigated with the government.”).

This means that, after an employee files a motion to dismiss under subsection (f), a plaintiff is faced with the same choice he otherwise faces under subsections (a) and (b) when he first files suit: he must choose a single avenue of recovery — against the government or the employee — at a time when there may be uncertainty as to which avenue of recovery is the right one under the facts of the case. Subsection (f), like the election-of-remedies provision as a whole, forces a Tort Claims Act plaintiff to decide early whether the government employee acted within the scope of employment, and makes the plaintiff, rather than the governmental unit or its employee, bear the consequences if the decision is wrong.

III.

Application

In the present case, as the Court acknowledges, the plaintiff “originally elected to bring suit only against [the employee]” and “[o]nce [the employee] filed his motion to dismiss, [the plaintiff] faced a choice: (1) dispute that [the employee] acted in his official capacity and urge the court to deny [the employee’s] motion to dismiss, thus pursing his claims against [the employee] alone, or (2) pursue his claim against [the employer], the governmental unit, which would in turn end his suit against [the employee].” Ante at 360. But when the employee filed a motion to dismiss under subsection (f), the plaintiff attempted to pursue yet a third course: instead of choosing not to file an amended pleading, or choosing to file an amended pleading dismissing the employee and naming the governmental unit as defendant, the employee filed an amended pleading adding the governmental unit as a defendant, without dismissing the employee.⁶

I would hold that, by failing to do what subsection (f) allowed him to do, the plaintiff forfeited the opportunity that subsection (f) would have given him to add the governmental unit as defendant. And in the absence of subsection (f)’s authorization to add the governmental unit, subsection (b) (which applies any time a plaintiff sues an employee) forever bars the plaintiffs claims against the governmental unit.

A. Subsection (f) is an exception to subsection (b).

By their own terms, both subsections (b) and (f) apply when a plaintiff sues a government employee, although the latter applies only when that suit is based on conduct within the scope of employment and could have been brought against the governmental unit under the Tort Claims Act. See Tex. Civ. PRAC. & Rem.Code § 101.106(b), (f). Subsection (b) provides that the plaintiffs filing of a suit against the employee “immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.” Id. § 101.106(b). Yet subsection (f) expressly authorizes the plaintiff to respond to the employee’s motion to dismiss by filing amended pleadings naming the governmental unit as a defendant. Id. § 101.106(f). The governmental unit in this case contends that subsection (f) provides a limited exception to subsection (b)’s bar, arguing that this construction is the only way to give effect to both subsection (b)’s prohibition (against suing the governmental unit) and subsection (f)’s permission (to sue the governmental unit). I agree with the governmental unit and with the courts of appeals that have held that subsection (f) is an exception to the bar in subsection (b).⁷

B. The plaintiff failed to trigger subsection (f)’s exception to subsection (b).

Subsection (f) expressly authorizes the plaintiff to assert claims against the governmental unit (despite the bar in subsection (b)) only if the plaintiffs amended pleadings both “dismiss the employee and add the governmental unit as defendant.” Tex. Civ. Prac. & Rem.Code § 101.106(f) (emphasis added). By failing to dismiss the employee, the plaintiff in this case did not meet the requirements that would have permitted him to avoid the bar in subsection (b) and sue the governmental unit. I would therefore hold that subsection (b) bars the plaintiffs claims against the governmental unit, “unless the governmental unit consents.”

C. The “consent” exception to subsection (b) does not apply.

Before applying subsection (b)’s “consent” exception, the court of appeals reached the same conclusion I do above— because the plaintiff failed to comply with subsection (f), his claims were barred by subsection (b). 2011 WL 1642179, at *8. But the court held that the “consent” exception applied, and subsection (b) did not bar the plaintiffs claims against the governmental unit, because the Tort Claims Act waives immunity for suits based on a governmental employee’s negligent operation of a motor-driven vehicle. See id. at *11; Tex. Civ. Prac. & Rem.Code § 101.021(1) (waiving governmental immunity). The court read our decision in Garcia to hold that the “consent” referenced in subsection (b) includes the legislative waiver of immunity through the Tort Claims Act. Although the court noted that its construction of the statute “seems problematic and inconsistent with the language of section 101.106,” it concluded that it was “bound by that construction nonetheless.” See 2011 WL 1642179, at *11; see also id. at *10 (“In addition, this construction of the term ‘consents’ in subsection 101.106(b) seems to eliminate any real effect to the provision because plaintiffs have always been prohibited from suing governmental employers when immunity has not been waived. Stated differently, subsection 101.106(b) only bars subsequent suits against governmental employers that were already barred through the doctrine of sovereign immunity.”). I disagree that this Court’s opinion in Garcia mandates this “problematic” construction of subsection (b), which is “inconsistent with the language” of the statute and would render subsection (b) entirely superfluous.

The Court held in Garcia that subsection (b)’s “consent” exception includes a statutory waiver of immunity, but we were dealing in that case with a waiver under the Texas Commission on Human Rights Act, not a waiver under the Tort Claims Act, which itself contains section 101.106. 253 S.W.3d at 660. Based on this distinction, the governmental unit in the present case argues that consent under subsection (b) can only come from a waiver under a statute other than the Tort Claims Act. The Court disagrees. Ante at 356. I also disagree with the governmental unit that “consent” can only be found in a statute other than the Tort Claims Act — subsection (b) contains no such limitation — but I agree that the statute treats claims brought under the Tort Claims Act’s waivers of immunity differently than claims brought under other statutory waivers of immunity. The statute expressly distinguishes between requirements and limitations that apply only to claims under the Tort Claims Act — i.e., claims “under this chapter.” See Tex. Civ. Prac. & Rem.Code § 101.106.

There are at least two reasons that this distinction is important. First, claims brought under other statutory waivers of immunity are subject to a different set of jurisdictional requirements. This distinction is key because a plaintiffs claims under the Tort Claims Act are subject to section 101.106(e) and (f), while claims brought under different statutory waivers of immunity are not. Second, failing to distinguish between claims brought under the Tort Claims Act and claims brought under a different statute not only ignores the Tort Claims Act’s specific statutory requisites to suit but also renders subsection (b) meaningless. As the court of appeals recognized, under its construction of “consent,” any claim for which governmental immunity is waived falls within subsection (b)’s “consent” exception; thus, subsection (b) only bars suit that are already barred by governmental immunity. See 2011 WL 1642179, at *10. I would not construe the consent language in a manner that renders subsection (b) meaningless. See 2011 WL 1642179, at *10; cf. Franka, 332 S.W.3d at 393 (“Statutory language should not be read as pointless if it is reasonably susceptible to another construction.”).

Instead, I would hold that the State, on behalf of its governmental units, consents to suit within the meaning of 101.106(b) only when a claimant has complied with all jurisdictional requirements for filing suit under the immunity-waiving statute. See Garcia, 253 S.W.3d at 660 (“[T]he Legislature, on behalf of the ISD, has consented to suits brought under the TCHRA, provided the procedures- outlined in the statute have been met”) (emphasis added). For suits brought under the Tort Claims Act, this includes compliance with section 101.106(f), which allows a plaintiff who has sued a government employee based on the employee’s conduct within the scope of employment to substitute the governmental unit as defendant only if “the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant” within thirty days. Tex. Civ. Peac. & Rem.Code § 101.106(f). A plaintiff who does not comply with this statutory requirement does not have consent to amend the pleadings to sue a governmental unit under the Act. See id.; see also Franka, 332 S.W.3d at 371 n. 9 (concluding that a motion for summary judgment based on section 101.106(f) asserts claim of governmental immunity).⁸ In other words, subsection (f) provides consent to sue the government only if the plaintiff complies with subsection (f) and the Act’s other jurisdictional requisites.

This construction is consistent with our holding in Garcia. The TCHRA claims that the Court held subsection (b) did not bar in Garcia were not subject to subsections (e) or (f). Subsections (e) and (f) apply only to claims that are or could have been brought under the Tort Claims Act. See Tex. Civ. Prac. & Rem.Code § 101.106(e), (f); Garcia, 253 S.W.3d at 658-59. Subsection (b), on the other hand, is not limited to claims brought under the Tort Claims Act. See Tex. Civ. Prac. & Rem.Code § 101.106(b); Garcia, 253 S.W.3d at 660.

Subsections (e) and (f) operate in conjunction with subsections (a) and (b) to preclude Tort Claims Act plaintiffs from pursuing claims against both the governmental unit and its employee. Other statutory immunity waivers may permit a plaintiff to sue both the government and its employee, but like the TCHRA, may contain other limitations on the claimant’s cause of action. See, e.g., Tex. Lab.Code §§ 21.208, 21.252 (requiring plaintiffs to pursue administrative relief before filing suit); id. § 21.211 (imposing different election-of-remedies on TCHRA plaintiffs).

Although subsection (b) reaches more than just claims brought under the Tort Claims Act, it contains an exception if the governmental unit consents to suit. See Tex. Civ. Prac. & Rem.Code § 101.106(b). Absent this consent exception, subsection (b) would bar any plaintiff who has sued a government employee from also suing or recovering against the governmental unit (subject to subsection (f)), regardless of whether the plaintiff sued under the Tort Claims Act, the TCHRA, or another immunity-waiving statute. Subsection (b)’s consent exception permits each immunity-waiving statute to determine independently whether to permit suit against the government and its employee both or to restrict suit to one or the other, or to place some other restriction consistent with the statute’s own scheme for granting a right to sue the governmental unit. Thus, we concluded in Garcia that subsection (b) reached the plaintiffs TCHRA claims but did not bar those claims “provided the procedures outlined in the statute have been met.” 253 S.W.3d at 660.

In the present case, subsection (b) would not bar the plaintiffs Tort Claims Act claims against the governmental unit if “the procedures outlined in the statute ha[d] been met” — specifically, if he had complied with the procedure allowed in subsection (f) for substituting the governmental unit as the defendant. See id. Because he sued the employee and then failed to dismiss the employee in response to the employee’s motion, the plaintiff has not met the jurisdictional requirements necessary to trigger the Legislature’s consent to sue the governmental unit under the Act.

D. The Court rewrites the statute to hold otherwise.

The Court holds that, despite subsection (b)’s bar, subsection (f) permits the claims against the governmental unit to survive whether or not the plaintiff complies with subsection (f)’s requirements. In my view, the majority reaches these conclusions only by substantially rewriting subsection (f) in a manner that causes the exception to swallow the rule.

The majority repeatedly says that subsection (f) “provides” that a suit to which it applies (that is, a tort action based on conduct within the general scope of employment that could have been brought against the governmental unit) “is considered to have been filed against the governmental unit, not the employee.” Ante at 352; see also ante at 366 (“under subsection (f), [such a suit] is considered to have been brought against the governmental unit, not the employee”) (emphasis in original); ante at 357 (referring to “[subsection (f)’s express classification of such a suit as one against the governmental unit”) (emphasis added); ante at 358 (characterizing subsection (f) as “clarifying that [such a suit] is ‘considered to be against’ the governmental unit itself, not the employee”). Subsection (f), however, does not say that a suit based on an employee’s conduct within the scope of employment is, or is considered to be, “a suit against the governmental unit.” To the contrary, it states that such a suit “is considered to be against the employee in the employee’s official capacity only.” Tex. Civ. Prac. & Rem.Code § 101.106(f) (emphasis added).⁹

It is true, as the Court notes, that we have held that “a suit against a state official is merely ‘another way of pleading an action against the entity of which [the official] is an agent,’ ” that the entity is “the real party in interest” in such a suit, and that such a suit “is, in all respects other than name, a suit against the entity.” Franka, 332 S.W.3d at 382 n. 68 (quoting Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). But under the pleadings, such a suit is still a suit against the government employee, and the government employee is still a named party to the suit, which is why subsection (f) says it is “considered to be against the employee in the employee’s official capacity only,” rather than that it is “considered to be against the governmental unit.”

In essence, the Court construes the phrase “is considered to be against the employee in the employee’s official capacity only” as effectuating an automatic substitution of the governmental unit for the employee, so that the suit is treated as a suit against the governmental unit (to which subsection (a) applies) rather than a suit against the employee (to which subsection (b) applies). But this is contrary to our previous construction of subsection (f). See, e.g., Univ. of Tex. Health Sci Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex.2011). In Bailey, we held that, because of the “is considered to be” clause in subsection (f), “[i]n effect, when [the plaintiffs] sued [the employee], they sued [the governmental unit],” but we expressly noted that “[substitution of the [governmental unit] as the defendant was not automatic; [the employee] was required to file a motion.” Id.

More importantly, holding that subsection (f)’s “is considered to be” language somehow automatically substitutes the governmental unit for its employee is contrary to the language of subsection (f), and renders the second sentence of subsection (f) superfluous.¹⁰ See Tex. Civ. Prac. & Rem.Code § 101.106(f). If, by saying the suit “is considered to be against the employee in the employee’s official capacity only,” the Legislature meant that the suit “is considered to be against the governmental unit only,” then the Legislature would not have needed to say that the plaintiff must file amended pleadings “naming the governmental unit as defendant,” nor would it be necessary for the statute to dictate dismissal of the employee.

As written, subsection (f) expressly states that the substitution of defendants occurs only if the employee files a motion to dismiss and the plaintiff timely files amended pleadings substituting the defendants. See id. Otherwise, it remains a suit against the employee, but because it is based on conduct within the scope of employment, it is “considered to be against the employee in the employee’s official capacity only.” The fact that the suit against the employee is considered to be against the employee in the employee’s official capacity only is the reason the Legislature permits the substitution; it is not a reason to treat the expressly mandated procedure for substitution as superfluous and optional.

The Court also rewrites the statute by holding that, “while the Legislature has set out a procedure for the dismissal of a suit against an employee who was acting within the course of employment, this procedure is immaterial to whether suit may be maintained against the proper defendant — the government.” Ante at 352. Similarly, the Court says that the “suit against the governmental unit should proceed because the plaintiff was entitled to, and did, amend his pleadings to assert a [Tort Claims Act] claim against the government.” Ante at 352. In my view, these statements simply ignore the language of subsection (f), effectively striking out the portion that allows a plaintiff to file “amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Tex. Civ. Prac. & Rem.Code § 101.106(f) (emphasis added). Subsection (f) is not an open-ended invitation for plaintiffs to bring suit against a governmental unit after suing the governmental unit’s employee; it provides a single, specific procedure by which plaintiffs who have sued a government employee for conduct within the scope of employment can avoid dismissal of their entire case by adding the governmental unit as a defendant and voluntarily dismissing their claims against the employee.

It is important to note that the Court never holds or even contends that the plaintiff complied with subsection (f)’s requirement that he timely amend his pleadings to dismiss the employee and name the governmental unit as defendant. Instead, the Court just construes subsection (f) to not require that at all, despite the fact that it expressly does. The Court’s construction of subsection (f) renders subsection (b) meaningless for Tort Claims Act plaintiffs. Subsection (b) expressly prohibits such plaintiffs from filing suit or recovering against a governmental unit after filing suit against one of its employees regarding the same subject matter. Id. § 101.106(b). Under the Court’s construction, this prohibition does not apply to a plaintiff who brings claims under the Act based on conduct within the scope of employment. But those are the only Tort Claims Act claims that subsection (b) bars — suit against a governmental unit based on conduct outside the scope of employment is already barred by governmental immunity, and employers are not generally vicariously liable for employee conduct outside the scope of employment regardless. See id. § 101.021; Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002) (observing that employer is generally only liable for employee’s acts within course and scope of employment).

The Court responds that its construction of subsection (f) does not render subsection (b) meaningless, rather it only “mitigate[s] the harsh consequences imposed by subsection (b) with respect to [Tort Claims Act] claims[.]” Ante at 360. Although the Court uses the word “mitigates” rather than “eviscerates,” it does not identify any way in which subsection (b) could bar any Tort Claims Act under its construction of the statute unless the claim was already barred by governmental immunity. The Court may intend to imply that, while its construction renders subsection (b) meaningless for Tort Claims Act plaintiffs, subsection (b) could still have some effect on suits brought under other statutory waivers of immunity because such suits are not subject to subsection (f). But this Court has already held that, under the “consent” exception, subsection (b) does not bar claims brought under other statutory waivers of immunity “provided that the procedures outlined in the statute have been met.” Garcia, 253 S.W.3d at 660. And, of course, if the immunity-waiving statute’s prerequisites to suit are not met, the claims are barred by immunity anyway. See Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”).

To have any effect, subsection (b) must prohibit suit when the Act’s waiver of immunity would otherwise allow it. It is unclear when, under the Court’s construction, subsection (b) would ever bar an otherwise-allowed suit against a governmental unit after the filing of suit against a government employee. Yet, that is exactly what subsection (b) expressly prohibits in broad and decisive terms. See Tex. Civ. Prac. & Rem.Code § 101.106(b). Moreover, even assuming that the Court’s construction leaves subsection (b) with some effect, albeit only on non-Tort Claims Act suits, it is difficult to square subsection (b)’s language — which we have construed as applying to “any suit against the governmental unit,” Garcia, 253 S.W.3d at 659 — with an impact that is limited to claims that are not brought under the Act in which it appears.

IV.

Conclusion

Section 101.106 of the Tort Claims Act is complex and difficult to construe, but I believe the Court has done it too much damage. Under the statute, a suit against a government employee based on conduct within the scope of employment is still a suit against a government employee. That is why, if the employee files a motion to dismiss, the statute says the plaintiff must amend to dismiss the employee and name the governmental unit as defendant. Otherwise, subsection (f) requires dismissal of the suit against the employee and does not authorize adding claims against the governmental unit, and subsection (b) bars any such claims. By holding that a suit against an employee is actually a suit against the governmental unit, the Court rewrites subsection (f) and renders subsection (b) essentially meaningless. Because the plaintiff in this case did not timely file “amended pleadings dismissing the employee and naming the governmental unit as defendant,” I would hold that subsection (f) does not authorize his amended pleadings, and his claims against the governmental unit must be dismissed.

1 . Although the governmental unit, the petitioner in this case, has not expressly agreed that the accident occurred within the scope of the employee’s employment, it has not contested it in this Court.

2 . See Tex. Civ. Prac. & Rem.Code § 101.106(b).

3 . See Tex. Civ. Prac. & Rem.Code § 101.106(b).

4 . Subsections (a), (c), (e), and (f) apply to suits and claims that are or could have been brought or filed "under this chapter,” which we have interpreted to include “all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees,” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex.2008), and “even if the Act does not waive immunity” for the suit. Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex.2011). Subsections (b) and (d), which address suits and judgments against a government employee, are not limited to those brought "under this chapter.”

5 . Similarly, under subsection (c), the settlement of such a claim will "immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.” Id. § 101.106(c).

6 . The plaintiffs amended pleading was titled "Plaintiff's First Amended Petition and Motion to Dismiss as to Defendant Franklin Barnum," but in the body and prayer of the pleading, the plaintiff did not request dismissal of the employee, and instead continued to assert claims against, and seek relief from, the employee. Although the plaintiff contends in this Court that he at least “substantially complied” with subsection (f)'s requirement to dismiss the claims against the employee, I agree with the Court's conclusion that he did not.

7 . See, e.g., Tex. Tech Univ. Health Sci. Ctr. v. Williams, 344 S.W.3d 508, 513 (Tex.App.-El Paso 2011, no pet.) ("[T]he governmental unit's immunity from 'any suit or recovery' thus retained under Subsection (b) remains subject to removal under Subsection (f) if the employee defendant moves for dismissal of the suit against him."); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 236 (Tex.App.-San Antonio 2010, no pet.) (dismissing suit against governmental unit after plaintiff failed to comply with subsection (0); Huntsville Indep. Sch. Dist. v. Briggs, 262 S.W.3d 390, 395 (Tex.App.-Waco 2008, pet. denied) (holding that plaintiff who sued government employee and amended to add governmental unit in response to employee's motion to dismiss could not pursue claims against governmental unit because plaintiff "did not comply with the procedural requirements of subsection (f). Therefore, the protections of subsection (b) were still available to [the governmental unit].”); Tex. Dep’t of Agric. v. Calderon, 221 S.W.3d 918, 923-24 (Tex.App.-Corpus Christi 2007, no pet.) (holding that plaintiffs who initially sued employee and amended to add governmental unit in response to employee's motion to dismiss could not proceed against governmental unit: “because of [plaintiffs’] failure to comply with section 101.106(f), the [governmental unit] retained its immunity from suit derived from section 101.106(b), and [plaintiffs] lost the opportunity provided by section 101.106(f) to name the [governmental unit] in place of [the employee] as the defendant in the lawsuit.”), disapproved of on other grounds by Frarika, 332 S.W.3d at 382 n. 67.

8 . See also City of Houston v. Esparza, 369 S.W.3d 238, 249-50 (Tex.App.-Houston [1st Dist.] 2011, pet. denied Aug. 30, 2013) ("[S]ubsection (b)'s ‘consent’ exception permits a claimant to bring suit against a governmental unit only if the claimant has complied with all of the authorizing statute’s jurisdictional requirements for bringing suit. For claims brought under the Tort Claims Act, the claimant must meet all of the Act's jurisdictional constraints.... By its plain language and very nature, the election-of-remedies provision is such a jurisdictional constraint.”) (citations omitted).

9 . This provision of the statute is not meaningless; even if the employee does not file a motion to dismiss, it prevents the plaintiff from recovering against a government employee personally for tortious conduct within the scope of employment. See Franka v. Velasquez, 332 S.W.3d 367, 383 (Tex.2011) (observing that public employees were traditionally personally liable for their own torts, even if the torts occur within the scope of employment).

10 . The Court ostensibly identifies a consequence for failing to comply with the second sentence of subsection (f): "the consequence of failing to substitute the government for the employee in response to an employee’s subsection (f) motion to dismiss (assuming the employee was sued in his official capacity) is that suit against the employee shall be dismissed.” Ante at 358; see also ante at 359 (“[i]f the plaintiff fails to [dismiss the employee pursuant to subsection (f) ], and the employee was sued in his official capacity only, then the case must be dismissed.”). But the Court’s holding is not consistent with these statements — the Court holds that the trial court and court of appeals properly allowed the plaintiff to proceed on his amended pleadings against the government without dismissal of this suit or re-filing of the claims against the government. Thus, the Court does not actually apply "the consequence of failing to dismiss the employee" it identifies; instead, there is no consequence. The Court elsewhere recognizes that, under its construction, it makes no difference whether the plaintiff complies with subsection (f) or not — dismissal of the employee "is required upon the filing of a motion to dismiss regardless of any further action by the plaintiff.” Ante at 358. Thus, the Court construes "the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit” to mean "the suit against the employee shall be dismissed [regardless of whether ] the plaintiff files amended pleadings dismissing the employee and naming the governmental unit.”

The Court responds to this criticism by stating that its holding requires dismissal of the claims against the employee, even if it permits the case to proceed against the governmental unit. Ante at 373. But under the Court's construction, this suit is (and has always been) a suit against the governmental unit, not a suit against the employee. Under that construction, dismissal of the employee is already required by subsection (a), which immediately and forever bars a suit from proceeding against a governmental employee upon filing of the same claims against the governmental employer. See Tex Civ. Prac. & Rem Code § 101.106(a). Additionally, the Court offers no explanation as to why the Legislature would provide a specific procedure for, and impose a thirty-day time limit on, the plaintiff's voluntary dismissal of the government employee if the Legislature intended that there would be no consequence for ignoring both the procedure and the time limit.

Case Details

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

Court Name: Texas Supreme Court

Date Published: Aug 30, 2013

Citations: 408 S.W.3d 350; 2013 WL 4608867; 2013 Tex. LEXIS 681; 56 Tex. Sup. Ct. J. 1131; 11-0686

Docket Number: 11-0686

Court Abbreviation: Tex.