In City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.--Houston 1st Dist. Oct. 7, 2011, no pet. h.), the plaintiff, Esparza, filed suit against both the City of Houston and its employee, claiming that the employee was negligent in causing a car accident.
The City moved to dismiss the employee under section 101.106(e). Id.
It also filed a plea to the jurisdiction asserting that Esparza's claims against the City were barred by Tex. Civ. Prac. & Rem. Code section 101.106(b) of the Act. Id.
The trial court granted the motion to dismiss the employee, but denied the City's plea to the jurisdiction. Id.
On rehearing, the Court affirmed the judgment of the trial court.
The Court rejected 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 dismissal of both defendants.
The Court concluded, instead, that when a claimant fails to elect between defendants and instead sues both the government unit and its employee, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed upon motion by either the government or the employee made on behalf of the employer. ("By operation of subsection (e), Esparza's filing of suit and the City's motion to dismiss the employee resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than the employee.").
With regard to what constitutes "consent" under section 101.106(b), the Court held "a claimant may find 'consent' to suit within the Act's limited waivers of immunity only if the claimant has satisfied the Act's other jurisdictional requirements, including those set forth in the election-of-remedies provision." Id.
A claimant satisfies section 101.106 by electing--voluntarily or involuntarily--whether he will prosecute his claims against a governmental unit or its employee, forever forgoing prosecution against the other. Id.
In City of Houston v. Esparza, a plaintiff who sues both the governmental employee and the governmental unit cannot maintain suit against either.
More particularly, the City contends that if a plaintiff, such as McMahon, originally sues both a governmental unit and its employee then, on the governmental unit's motion, the employee must be dismissed under subsection (e) and the plaintiff's remaining suit against the governmental unit must be dismissed under subsection (b). According to the City, the employee is dismissed under subsection (e) and the governmental unit is immune from suit under subsection (b).
The Court rejected the City's argument in City of Houston v. Esparza.
The Court reasoned that requiring dismissal of the claims against the governmental unit when a plaintiff sues both the governmental unit and its employee would render subsection (e) "superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent."
The Court held that the filing of a suit against both the governmental unit and its employee invokes subsection (e) and results in the plaintiff's involuntary election of the governmental unit as her exclusive defendant, should the government or its employee choose to file a dismissal motion on behalf of the employee. See id.
Under those circumstances, subsection (a) forever bars the claimant from pursuing her claims against the government employee, the non-elected defendant; but, subsection (b) does not simultaneously prohibit the claimant from pursuing her claims against the governmental unit, her elected defendant.
In sum, "While a claimant who erroneously fails to make an election has an election foisted upon her by operation of the statute, her inartful drafting does not, alone, bar her claims against both the employee and the employer."