Dismissal of governmental entity not allowed for Texas Tort Claims Act claims even if employee is sued.

Texas Parks and Wildlife Department v Ruiz, No. 13-11-00789-CV, (Tex. Civ. App. – Corpus Christi, March 21, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction arising out of an automobile accident.  This case is applying the various subsections of Tex. Civ. Prac. & Rem. Code §101.106 which is an irrevocable election of defendants provision.  The Plaintiff, Ruiz, sued both TPWD and the employee driving the vehicle which collided with him.  TPWD filed a motion to dismiss the employee pursuant to §101.106(e) which states that if a plaintiff sues both the entity and the employee in a cause of action, the employee is entitled to immediate dismissal.  Ruiz non-suited the employee.  TPWD then filed a plea to the jurisdiction citing §101.106(b) which states that a suit against an employee forever bars a claim against the entity.  The trial court denied the plea and TPWD appealed.

The court of appeals determined that subsection (b) and (e) should be read together and not separately.  Therefore subsection (b) does not apply if (e) is utilized first. This reasoning follows several other courts.  While this is probably the proper result, the dangerous part of this opinion is the discussion of the “consent to sue” language. Subsection (b) is the only part of §101.106 which states that claims are barred “regarding the same subject matter unless the governmental unit consents.”  All other subsections end with “regarding the same subject matter.”  The court interprets this to mean that since the Texas Tort Claims Act is a consent to sue, subsection (b) cannot be used for any TTCA claims.  The court affirmed the denial of the plea.

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