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Victor S. Hung v. Fabiola Davis, Individually and as next friend of Keith Henderson and Abigail Hernandez
Case Number: 01-20-00746-CV
Judge: Amparo Guerra
First Court of Appeals Houston, Texas
On appeal from the Co Civil Ct at Law No 2 of Harris County
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Defendant's Attorney: Samuel Milledge
Houston, Texas – Personal Injury lawyer represented defendant with appealing the trial court’s order denying a negligence claim.
This lawsuit arises from a motor vehicle accident resulting in alleged injuries
and damages to Davis and her two minor children. Davis alleges that she and her
children were traveling on a Houston-area highway when traffic caused her to slow
and stop her vehicle. Hung, a public safety officer driving a vehicle owned by the
City of Houston (“City”), rear-ended Davis. Davis sued both Hung and the City,
asserting in her original petition that Hung was negligent and that the City was
vicariously liable because Hung was acting within the course and scope of his
employment with the City when the accident occurred.
The City answered and moved to dismiss Hung from the lawsuit. In support
of Hung’s dismissal, the City argued that Davis’s negligence claim was governed by
the TTCA and subject to dismissal under Section 101.106 of the Act, also known as
the election-of-remedies provision. See TEX. CIV. PRAC. & REM. CODE § 101.106.
Section 101.106(e), the relevant subsection, provides that “[i]f suit is filed under this
chapter against both a governmental unit and any of its employees, the employees
1 Davis did not file an appellee’s brief or any other response to Hung’s issue on appeal
in this Court.
shall immediately be dismissed on the filing of a motion by the governmental unit.”
Id. According to the City, this provision required that Davis’s suit against the City,
a governmental unit, and its employee, Hung, proceed against the City only.
The trial court initially granted the City’s motion and dismissed Davis’s
negligence claim against Hung, leaving the City as the lone defendant in the lawsuit.
Davis moved for reconsideration and reinstatement, complaining that she had not
been given adequate time to oppose Hung’s dismissal and that discovery should be
permitted on the course and scope of Hung’s employment before any ruling on the
viability of her claim against him. The trial court reinstated Davis’s claim against
Hung and reset the City’s motion to dismiss for a hearing.
After the trial court reinstated Davis’s negligence claim against him, Hung
filed his original answer and contemporaneously moved to dismiss under Texas Rule
of Civil Procedure 91a. See TEX.R.CIV. P. 91a. In his Rule 91a motion, Hung argued
that Davis’s claim had no basis in law because the City’s motion had triggered his
right to dismissal under the election-of-remedies provision.
A little more than two weeks later, Davis nonsuited the City without prejudice
and amended her pleading against Hung to omit the allegation that he was acting in
the course and scope of his employment at the time of the accident and claim instead
that he was off duty. Davis also responded to Hung’s Rule 91a motion, urging that
his dismissal request was mooted by her amended pleading. Davis urged that the
TTCA’s election-of-remedies provision no longer applied because her amended
allegation that Hung’s negligence occurred while he was off duty placed her claim
outside the TTCA’s scope. She argued that the TTCA “does not apply to the
wrongful act or omission or the negligence of an officer commissioned by the
Department of Public Safety if the officer was not on active duty at the time the act,
omission, or negligence occurred.”
The trial court signed an order of nonsuit as to the City, and later denied
Hung’s Rule 91a motion. Hung filed a timely notice of appeal under Section
51.014(a)(5) of the Civil Practice and Remedies Code, which authorizes an
interlocutory appeal of an order that “denies a motion for summary judgment that is
based on an assertion of immunity by an individual who is an officer or employee of
the state or a political subdivision of the state.” TEX. CIV. PRAC. & REM. CODE
Although neither party contends the trial court’s interlocutory order denying
Hung’s Rule 91a motion is not appealable, we have a duty to examine our own
jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). This
Court generally does not have jurisdiction over an appeal from an interlocutory order
denying a Rule 91a motion to dismiss. See Bally Total Fitness Corp. v. Jackson, 53
S.W.3d 352, 352 (Tex. 2001) (noting party may not appeal interlocutory order unless
authorized by statute); see also Koenig v. Blaylock, 497 S.W.3d 595, 598 n.4 (Tex.
App.—Austin 2016, pet. denied) (observing no statute permitted interlocutory
appeal from an order denying Rule 91a motion); S. Cent. Hous. Action v. Stewart,
No. 14-15-00088-CV, 2015 WL 1508699, at *1 (Tex. App.—Houston [14th Dist.]
Mar. 31, 2015, no pet.) (mem. op.) (per curiam) (holding appellate court had no
jurisdiction over interlocutory order denying Rule 91a motion to dismiss); cf. In re
Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam)
(holding denial of Rule 91a motion to dismiss is subject to mandamus review). But
an order denying a Rule 91a motion to dismiss may be the subject of an interlocutory
appeal if its component rulings fall within the categories of appeals authorized by
Section 51.014 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. &
REM. CODE § 51.014 (listing types of orders from which interlocutory appeal is
available); see also Bass v. Waller Cty. Sub-Reg’l Plan. Comm’n, 514 S.W.3d 908,
912 & n.14 (Tex. App.—Austin 2017, no pet.) (noting “the Legislature has thus far
not seen fit to authorize—at least categorically—appeals of interlocutory
orders . . . denying Rule 91a motions” but that such orders “can conceivably include
component rulings that have been made appealable”).
Hung appealed the denial of his Rule 91a motion under Section 51.014(a)(5),
which permits an interlocutory appeal of the denial of a “motion for summary
judgment that is based on an assertion of immunity by an individual who is an officer
or employee of the state or a political subdivision of the state.”2 TEX. CIV. PRAC. &
REM. CODE § 51.014(a)(5). For the purposes of our appellate jurisdiction, it is not
significant that Hung sought dismissal of Davis’s claim against him by filing a
motion to dismiss rather than a motion for summary judgment, as referenced in
Section 51.014(a)(5). The Texas Supreme Court has recognized that “an appeal may
be taken from orders denying an assertion of immunity, as provided in section
51.014(a)(5), regardless of the procedural vehicle used.” Austin State Hosp. v.
Graham, 347 S.W.3d 298, 301(Tex. 2011).
Here, the only basis for dismissal Hung asserted in his Rule 91a motion was
the TTCA’s election-of-remedies provision. See TEX. CIV. PRAC. & REM. CODE
§ 101.106(e). By invoking the TTCA’s election-of-remedies provision, Hung raised
the issue of his immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex.
2011) (stating Section 101.106’s election-of-remedies provision confers immunity
It was undisputed in the trial court both that Hung is an employee of the City and
that the City is a political subdivision. The City attorneys have represented Hung
throughout the case, and the City’s separately filed motion to dismiss Davis’s claim
against Hung constituted a judicial admission that Hung was a City employee acting
in the course and scope of his employment. See Tex. Adjutant Gen.’s Office v.
Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013) (“By filing such a motion [to dismiss
its employee under Section 101.106(e)], 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.”); see also Ledesma v. City of Hous., 623
S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (“[B]y moving
to dismiss the claims against [its employee] under subsection (e), the City judicially
admitted that [its employee] was acting in the scope of employment and agreed to
vicariously defend her,” thus barring the City “from later disputing that [its
employee] was acting in the scope of her employment”).
in some instances to employees of governmental units); Fink v. Anderson, 477
S.W.3d 460, 465 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (same). Thus, even
though this appeal arises from a Rule 91a motion and not a summary judgment
motion, we have appellate jurisdiction. See Austin State Hosp., 347 S.W.3d at 301;
see also City of Webster v. Myers, 360 S.W.3d 51, 55 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied) (concluding Section 51.014(a)(5) authorized appeal from
denial of city’s motion to dismiss under TTCA’s election-of-remedies provision);
Univ. of Tex. Health Sci. Ctr. at Hous. v. Crowder, 349 S.W.3d 640, 644 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (same); accord Edinburg Hous. Auth. v.
Ramirez, No. 13-19-00269-CV, 2021 WL 727016, at *2 (Tex. App.—Corpus Christi
Feb. 25, 202, no pet.) (mem. op.) (concluding Section 51.014(a)(5) authorized
interlocutory appeal of denial of individual housing commissioner’s Rule 91a
motion to dismiss because motion challenged trial court’s subject matter
jurisdiction). We therefore consider the merits of the trial court’s ruling.
Election of Remedies
In his sole issue on appeal, Hung argues that the trial court erred by denying
his Rule 91a motion to dismiss Davis’s negligence claim against him because, “by
initially filing suit against both [the City] and [him], Davis irrevocably elected to
pursue her claims against [the City] only and is forever barred from asserting her
claims against [him] individually.”
A. Standard of Review
Rule 91a provides a mechanism for early dismissal of a cause of action that
has no basis in law or fact. TEX. R. CIV. P. 91a.1. We generally review the merits of
a Rule 91a motion de novo. See City of Dall. v. Sanchez, 494 S.W.3d 722, 724 (Tex.
2016) (per curiam); Wooley v. Schaffer, 447 S.W.3d 71, 75–76 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied). But the proper standard of review is not necessarily
determined by the type of motion to which the order relates, rather it is determined
by the substance of the issue to be reviewed. Singleton v. Casteel, 267 S.W.3d 547,
550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing In re Doe, 19
S.W.3d 249, 253 (Tex. 2000)).
Here, Hung’s Rule 91a motion raised an issue of immunity as conferred by
Section 101.106 of the TTCA. See id.; see Franka, 332 S.W.3d at 371 n.9. If
immunity applies, the trial court lacks subject matter jurisdiction over Davis’s
negligence claim against Hung. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004); see also Myers, 360 S.W.3d at 56 (recognizing Section
101.106 is jurisdictional statute involving waiver of immunity); Univ. of Tex. Health
Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 240 (Tex. App.—San
Antonio 2010, no pet.) (same). Subject matter jurisdiction is a question of law which
we review de novo. Miranda, 133 S.W.3d at 226. Likewise, matters of statutory
construction are reviewed under a de novo standard. City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003); see also Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009).
B. Governing Law
The state and certain governmental units are entitled to sovereign or
governmental immunity, which deprives a trial court of subject matter jurisdiction,
unless the state waives immunity by consenting to suit. E.g., TEX. GOV’T CODE
§ 311.034; Miranda, 133 S.W.3d at 224; see also Tex. Adjutant Gen.’s Office v.
Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (“[N]o state can be sued in her own
courts without her consent, and then only in the manner indicated by that consent.”).
The TTCA “provides a limited waiver of immunity for certain suits against
governmental entities and caps recoverable damages.” Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see TEX.CIV. PRAC.&REM.CODE
§§ 101.001–.109. For instance, the Act generally waives governmental immunity to
the extent that liability arises from:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee acting
within his scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven
(B) the employee would be personally liable to the claimant
according to the Texas law[.]
TEX. CIV. PRAC. & REM. CODE § 101.021(1).
“After the [TTCA] was enacted, plaintiffs often sought to avoid the Act’s
damages cap or other strictures by suing governmental employees, since claims
against them were not always subject to the Act.” Garcia, 253 S.W.3d at 656. To
prevent such circumvention and to protect governmental employees, the Legislature
enacted a comprehensive election-of-remedies provision, Section 101.106, which
“requires a plaintiff to decide on a theory of tort liability before suit is even filed.”
Univ. of Tex. Health & Sci. Ctr. at Hous. v. Rios, 542 S.W.3d 530, 536 (Tex. 2017);
see TEX. CIV. PRAC. & REM. CODE § 101.106. The election-of-remedies provision
requires 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.
“This early-election requirement ‘reduce[s] the delay and expense associated with
allowing plaintiffs 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.” Rios, 542 S.W.3d at 536–
37 (quoting Garcia, 253 S.W.3d at 657).
In this appeal, we are concerned primarily with the election-of-remedies
provision’s subsection (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.
TEX. CIV. PRAC. & REM. CODE § 101.106(e). In other words, when a plaintiff sues
both a governmental unit and its employee in tort, subsection (e) requires the
immediate dismissal of the employee upon the governmental unit’s motion.3 See id.
“[T]his requirement effectively makes a plaintiff’s apparent nonchoice an election
to sue only the government.” Rios, 542 S.W.3d at 537; Tex. Dep’t of Aging &
Disability Servs. v. Cannon, 453 S.W.3d 411, 417 (Tex. 2015) (“Cannon does not
dispute that, by asserting common-law tort claims against both the Department and
the Employees, she made an irrevocable election under subsection (e) to pursue
those claims against the government only.”).
Hung argues that Section 101.106(e) bars Davis’s claim against him because,
in her original petition, Davis sued both the City, a governmental unit, and Hung,
the governmental unit’s employee, for negligence. We agree. By pleading in her
original petition negligence claims against both the City and Hung that were
premised on Hung’s alleged actions in the course and scope of his employment with
3 The Texas Supreme Court has warned that “[b]ecause the decision regarding whom
to sue has irrevocable consequences, a plaintiff must proceed cautiously before
filing suit and carefully consider whether to seek relief from the governmental unit
or the employee individually.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008).
the City, Davis made an irrevocable election to pursue a vicarious liability theory
against the City. See TEX. CIV. PRAC. & REM. CODE § 101.106(e); Rios, 542 S.W.3d
at 538–39. The City’s motion to dismiss Hung under Section 101.106(e) confirmed
Hung’s status as an employee and triggered his right to dismissal from the lawsuit.
See Rios, 542 S.W.3d at 538–39; Ngakoue, 408 S.W.3d at 358 (filing of
governmental unit’s motion to dismiss under Section 101.106(e) effectively
confirmed employee’s status and actions within course and scope of employment).
Although she has not filed a brief on appeal, Davis sought to avoid Hung’s
dismissal in the trial court on the ground that Section 101.106, and particularly
subsection (e), did not apply because she nonsuited the City and amended her
petition to omit the allegation that Hung was acting in the course and scope of his
employment at the time of the accident and to claim instead that he was off duty. In
support of her argument, Davis relied on Section 101.065 of the TTCA, which
provides that the Act “does not apply to . . . the negligence of an officer
commissioned by the Department of Public Safety if the officer was not on active
duty at the time the . . . negligence occurred.” TEX. CIV. PRAC. & REM. CODE
§ 101.065. As its placement within the TTCA’s subchapter containing “exclusions
and exceptions” suggests, Section 101.065 is an exception to the TTCA’s waiver of
immunity for the negligence of off-duty law enforcement officers. See id.; see also
City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006) (noting
Subchapter C of TTCA—entitled “Exceptions and Exclusions”—lists circumstances
in which Act’s waiver provisions do not apply). Davis reasoned that, because of her
amended allegations of off-duty negligence by Hung, her suit fell outside the scope
of the TTCA and thus Section 101.106(e), which applies only to suits filed “under
this chapter,” was not implicated. See TEX. CIV. PRAC. & REM. CODE §§ 101.106(e),
Davis’s argument is inconsistent with decisions of the Texas Supreme Court.
In Garcia, the Court rejected an interpretation of Section 101.106(e)’s “under this
chapter” language that limited its reach to tort claims for which the TTCA waives
immunity. See 253 S.W.3d at 658 (“[W]e have never interpreted ‘under this chapter’
to only encompass tort claims for which the [TTCA] waives immunity.”). The Court
reasoned: “Because the [TTCA] is the only, albeit limited, avenue for common-law
recovery against the government, all tort theories alleged against a governmental
unit, whether it is sued alone or together with its employees, are assumed to be ‘under
[the TTCA]’ for purposes of [S]ection 101.106.” Id. at 659. The Court further
reasoned that where tort claims are asserted against an employee and his
governmental employer, and the TTCA does not waive immunity for the claims
asserted, the employee would nevertheless be entitled to dismissal on the
governmental unit’s motion, even if the TTCA claims would not survive. See id.;
see also Myers, 360 S.W.3d at 57 (“[I]f a plaintiff brings any state common law tort
claim against both a governmental unit and its employees, subsection 101.106(e)
will allow the employee defendants to be dismissed on the motion of the
governmental unit.”). Considering Garcia’s reasoning, and without deciding
whether Section 101.065 would have preserved the City’s immunity in this case, we
reject Davis’s argument that Hung is not entitled to dismissal under Section
101.106(e) if there is no waiver of immunity under Section 101.065.
Davis’s argument that her pleading amendment effectively mooted Hung’s
Rule 91a motion also does not avoid Hung’s dismissal. On this point, we find the
Texas Supreme Court’s decision in Rios instructive. There, the plaintiff, a first-year
medical resident, sued the University of Texas Health Science Center and several of
its faculty doctors, alleging that they tried to discredit his reputation and harm his
future career in medicine. Rios, 542 S.W.3d at 532. The plaintiff alleged contract
claims against the Center and tort claims against the Center and the doctors. Id. The
Attorney General answered for the defendants and moved to dismiss all but the tort
claims against the Center. Id. As to the doctors, the Attorney General’s motion
argued for dismissal under Section 101.106(e). Id. at 532–33. The plaintiff
responded by amending his petition to drop his tort claims against the Center,
“leaving the [d]octors as the only tort defendants, and thus no longer suing under
[the Act] . . . both a governmental unit and any of its employees.” Id. at 533
(quotation omitted). The trial court denied dismissal of the tort claims against the
doctors, and the court of appeals affirmed. Id.
On further appeal to the Texas Supreme Court, the trial court’s order denying
dismissal of the plaintiff’s tort claims against the doctors was reversed. Id. at 539.
The Court determined that the plaintiff’s actions in amending his pleading did not
deny the Center a ruling on its motion to dismiss under Section 101.106(e). Id. at
537–38. The Court determined that the filing of a motion to dismiss, not its content,
triggers the right to dismissal under the statute. Id. at 538. And the statutory right to
dismissal “is not impaired by later amendments to the pleadings or motion.” Id. at
532. Thus, as to the plaintiff’s claims:
[The plaintiff] made an irrevocable election to pursue a
vicarious-liability theory against the Center by alleging in his original
petition state-law tort claims against both the Center and the [d]octors
that were premised on the [d]octors[ ] being Center employees. [The]
motion to dismiss the [d]octors under subsection (e) of the Act’s
election-of-remedies provision confirmed the [d]octors’ status as
employees and accrued their right to dismissal from the lawsuit. [The
plaintiff] could not avoid this result by amending his petition to drop
the tort claims against the Center[.]
Id. at 538–39; cf. Austin State Hosp., 347 S.W.3d at 301 (holding TEX. R. CIV. P.
162 prevented plaintiff from circumventing doctor-defendants’ right to dismissal
under Section 101.106(e) by nonsuiting hospital after doctors moved to dismiss).
Applying the reasoning of Rios here, Hung’s statutory right to dismissal under
Section 101.106(e) accrued upon the filing of the City’s motion to dismiss. See Rios,
542 S.W.3d at 538; see also TEX. CIV. PRAC. & REM. CODE § 101.106(e). This was
an irrevocable consequence of Davis’s election to sue both the City and Hung based
on Hung’s alleged negligence. See Rios, 542 S.W.3d at 536–37; see also TEX. CIV.
PRAC. & REM.CODE § 101.106(e). This consequence could not be cured or remedied
through Davis’s nonsuit of the City or pleading amendment recasting her claim as
one no longer under the TTCA or against both a governmental unit and its employee.
See Rios, 542 S.W.3d at 537; Austin State Hosp., 347 S.W.3d at 301. We therefore
conclude the trial court could not have denied Hung’s Rule 91a motion to dismiss
on this or any other basis argued by Davis, and we hold the trial court erred by
denying Hung’s Rule 91a motion.
We sustain Hung’s sole issue.
Outcome: We reverse the trial court’s order denying Hung’s Rule 91a motion to dismiss
and render judgment dismissing Hung from the lawsuit.