Date: 01-26-2012

Case Style: Metropolitan Transit Authority v. Wesley Wayne Light

Case Number: 01-11-00747-CV

Judge: Harvey Brown

Court: Texas Court of Appeals, First District on appeal from the 334th District Court, Harris County

Plaintiff's Attorney: Stephen Filipovitch for Wesley Wayne Light

Defendant's Attorney: Jon P. Bohn for Metropolitan Transit Authority

Description: Metropolitan Transit Authority (Metro) appeals from the trial court’s denial of its plea to the jurisdiction pursuant to section 101.106(b) of the Texas Tort Claims Act. In a single issue, Metro contends that the trial court erred in denying its plea. We affirm.

Background

Wesley Wayne Light brought this personal injury action against Metro and its employee, Henry Lopez, alleging that Lopez’s negligent operation of a Metro bus, while in the course and scope of his employment with Metro, caused a car accident that resulted in injuries to Lopez. After Metro moved to dismiss Light’s claims against Lopez, Light filed an amended petition dropping Lopez as a defendant. Metro then filed a plea to the jurisdiction asserting that section 101.106(b) of the Texas Tort Claims Act barred Light’s claims against Metro because Light originally filed suit against both a governmental unit, Metro, and its employee, Lopez. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011). The trial court denied Metro’s plea to the jurisdiction, and this interlocutory appeal followed. See id. § 51.014(a)(8) (West 2011).

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The existence of subject-matter jurisdiction is a question of law that we review de novo. State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681. We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not consider the merit of the case, but only the pleadings and evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

When we construe a statute, our primary objective is to determine and give effect to the Legislature’s intent. Gonzalez, 82 S.W.3d at 327. We start with the text because it is the best indication of the Legislature’s intent. See Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) (“Our ultimate purpose when construing statutes is to discover the Legislature’s intent. Presuming that lawmakers intended what they enacted, we begin with the statute’s text, relying whenever possible on the plain meaning of the words chosen.”) (citations and quotations omitted); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (stating that practice when construing statute is “to recognize that ‘the words [the Legislature] chooses should be the surest guide to legislative intent.’”) (citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 1149 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S. Ct. 698, 701 (1981)). If the statute’s text is not determinative, we may also consider its historical context, including legislative history and the circumstances under which it was enacted or revised, and the consequences of a particular construction. See Tex. Gov’t Code Ann. § 311.023 (West 2011).

“We ‘read the statute as a whole and interpret it to give effect to every part.’” Gonzalez, 82 S.W.3d at 327 (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). We interpret statutory waivers of immunity narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).

Plea to the Jurisdiction

The parties agree that Metro is a governmental unit and that Light’s claims are asserted under the limited waiver of immunity in section 101.021(1)(A) of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (West 2011) (waiving immunity for certain claims arising out of government employee’s negligent operation of motor-driven vehicle). Light’s suit is therefore subject to the Tort Claims Act’s procedural and jurisdictional requirements, including the election-of-remedies provision in section 101.106 of the Act. See id. § 101.106. Section 101.106 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.



. . .



(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.



. . .



Id.

Metro’s position is that it was entitled to have Lopez dismissed under subsection (e) and then have itself dismissed under subsection (b), leaving Light with no defendant against which he may prosecute his claims. This Court has rejected this construction of the election-of-remedies provision, which applies subsections (b) and (e) independent of, and without reference to, each other and the remainder of the provision. See City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *4–10 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed); City of Houston v. San Miguel, No. 01-10-01071-CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.). We have held that subsections (b) and (e) must be construed together and in the context of the provision as a whole. See Esparza, 2011 WL 4925990, at *6; San Miguel, 2011 WL 5429048, at *3.

As a whole, section 101.106 compels a tort claimant to choose at the time of filing between pursuing his claims against a governmental unit or its employee. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. When a claimant attempts to circumvent the election and sue both, the provision effectively forces an election of the governmental unit—the employee must be immediately dismissed upon the governmental unit’s motion. See id. 101.106(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.”); see also Esparza, 2011 WL 4925990, at *5–6; San Miguel, 2011 WL 5429048, at *3. In this situation, subsection (a) forever bars the claimant from pursuing his claims against the government employee, the un-elected defendant, but subsection (b) does not also bar the claimant from pursuing his claims against the governmental unit, his elected defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (b); Esparza, 2011 WL 4925990, at *5–6; San Miguel, 2011 WL 5429048, at *2–3.

Metro’s arguments, made before this Court issued Esparza and San Miguel, are foreclosed by the analysis and holdings in those cases. See Esparza, 2011 WL 4925990, at *4–10; San Miguel, 2011 WL 5429048, at *2–3. We overrule Metro’s sole issue.

* * *

See: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=90043

Outcome: We affirm the trial court’s denial of Metro’s plea to the jurisdiction.

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