In Huntsville Ind. Sch. Dist. v. Briggs, 262 S.W.3d 390 (Tex. App.--Waco 2008, pet. filed), the plaintiff sued an employee of Huntsville Independent School District (HISD) after his car was hit from behind by a school bus driven by the employee. 262 S.W.3d at 391.
The employee filed a motion to dismiss pursuant to section 101.106(f). Id. Although the plaintiff amended his petition to add HISD as a defendant within thirty days after the employee filed the motion to dismiss, the plaintiff did not amend his petition to remove the employee as a defendant until after the thirty-day deadline. Id.
HISD filed a plea to the jurisdiction, asserting immunity under section 101.106(b), which the trial court denied. Id.
The Waco court asserted, "What we need to decide in this appeal is what effect the untimely election under subsection (f) to dismiss the employee and substitute the governmental unit as a party to the suit has on the governmental unit's immunity established by subsection (b)." Briggs, 262 S.W.3d at 393.
The Waco court then discussed the decision in Tex. Dept. of Agriculture v. Calderon, 221 S.W.3d 918 (Tex. App.--Corpus Christi 2007, no pet.), agreeing with its analysis until the Calderon court determined that subsection (f) required the suit against the employee to be dismissed if the plaintiff failed to timely file an amended pleading. Id. at 394.
Instead, the Waco court asserted that the employee could be dismissed only if the employee proved the two prerequisites for dismissal, i.e., conduct within the scope of employment and suit could have been brought against the governmental unit under the Texas Tort Claims Act. Id.
The Waco court reasoned:
"…When a defendant employee files a motion to dismiss under subsection (f), the plaintiff has two choices. He can wait, not amend his petition, and see if the trial court agrees with the employee that the suit filed is a suit under the Texas Tort Claims Act, which meets the two prerequisites of the statute, and dismisses the suit against the defendant employee. Or, he can go ahead and timely amend his petition by both dismissing the employee and substituting the governmental unit as a party. He has 30 days from the filing of the motion to dismiss to timely amend.
There is certainly a risk with either choice. If the plaintiff waits, does not amend, and the trial court dismisses his suit against the defendant employee, he has missed his chance to sue the governmental unit, because he has opted to sue the employee first regarding the same subject matter. Whether the employee is initially sued in her individual or official capacity is irrelevant. The benefit of waiting is that if the trial court does not grant the employee's motion to dismiss because the employee has not proved the necessary prerequisites, the employee is still a defendant in the suit. But, if the plaintiff decides to amend, and does not do so timely, regardless of whether a subsection (f) motion has been granted, he has also missed the chance to sue the governmental unit…"
(Briggs, 262 S.W.3d at 394-95.)