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Evolution of Section 101.106 of the Tort Claims Act - Election of Remedies

In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent. State ex
rel. State Dep’t of Hwys. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Alexander v. Walker, No. 01–10–00147–
CV, 2011 WL 2500482, at *2 (Tex. App.—Houston [1st Dist.] Jan. 13, 2011, no pet.); see also Tex. Gov’t Code
Ann. § 312.005 (West 2005). We first look to the plain language of the statute. Fitzgerald v. Adv. Spine Fixation
Sys., 996 S.W.2d 864, 865 (Tex. 1999); Alexander, 2011 WL 2500482, at *2. We may also consider the object the
Legislature sought to attain, the circumstances under which it enacted the statute, legislative history, former
statutory provisions, and the consequences of a particular construction. See Tex. Gov’t Code Ann. § 311.023(1)
–(5) (West 2005). “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)). With respect to a
statutory waiver of
immunity, as in the Tort Claims Act, we interpret the waiver 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)
(citing Tex. Gov’t Code Ann. § 311.034 (West 2005)).


The Texas Tort Claims Act’s Election-of-Remedies Provision

Governmental immunity protects subdivisions of the State, such as the city, from lawsuits and liability, which would
otherwise “hamper governmental functions by requiring tax resources to be used for defending lawsuits and
paying judgments rather than using those resources for their intended purpose.” Garcia, 253 S.W.3d at 655–56
(quoting Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)). The State can waive this
immunity, and the Legislature has enacted statutes that create limited waivers with respect to specific types of
claims. E.g., Tex. Civ. Prac. & Rem. Code Ann. § 101.001–.109 (West 2005 & Supp. 2009) [Texas Tort Claims
Act] (establishing limited waiver of immunity for tort claims and capping governmental liability); Tex. Lab. Code
Ann. § 21.001–.556 (West 2006 & Supp. 2010) [Texas Commission on Human Rights Act] (providing statutory
remedy for unlawful discrimination for which immunity is waived).

The Texas Tort Claims Act “is the only, albeit limited, avenue for common-law recovery against the government,”
and governs all tort claims asserted against a governmental entity. Garcia, 253 S.W.3d at 659. Historically,
claimants under the Act sometimes chose to sue the employee of a governmental entity, rather than the entity
itself, in an effort to avoid the Act’s restrictions. Id. at 656. In 1985, the Legislature added to the Act a provision
that prevented claimants from suing governmental employees after settlement or adjudication of claims against
the government employer involving the same underlying conduct. Act of May 17, 1985, 69th Leg., R. S. ch. 959, §
1, 1985 Tex. Gen. Laws 3242 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106). Claimants
nonetheless continued to sue both the governmental entity and its employee, often alleging that the employee
acted within the scope of his or her employment or, in the alternative, that the employee was outside the scope of
his or her employment. Garcia, 253 S.W.3d at 656. This resulted in increased litigation costs for the government.
Id. To alleviate this problem, the Legislature amended section 101.106 of the Tort Claims Act in 2003 to force
claimants 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, thereby
reducing the resources that the government and its employees must use in defending redundant litigation and
alternative theories of recovery.” Id. at 657.

The  amended provision, entitled “Election of Remedies,” requires a claimant under the Act to choose between
pursuing claims against a governmental entity or its employees. Tex. Civ. Prac. & Rem. Code Ann. § 101.106.
Under subsections (a) and (b) of the provision, filing an action in tort against a governmental unit or its employee,
respectively, constitutes an “irrevocable election” that “immediately and forever bars” suit or recovery against the
other regarding the same subject matter, absent governmental consent. Id. § 101.106(a), (b);[1] see also Garcia,
253 S.W.3d at 655–56 (holding that subsection (b) barred suit against governmental employer where claimant
sued both governmental employer and employee); Alexander, 2011 WL 147888, at *3 (holding that when claimant
first sued governmental employees and later brought separate suit against governmental employer, subsection
(b) barred suit against employer and subsection (a) did not apply to suit against employees). The Supreme Court
of Texas has recognized that the election-of-remedies provision of the Tort Claims Act imposes “irrevocable
consequences” on a claimant’s decision regarding whom to sue, such that the claimant “must proceed cautiously
before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee
individually.” Garcia, 253 S.W.3d at 657.


A governmental unit in the state is liable for:

(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 equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac.& Rem. Code Ann. § 101.021 (Vernon 1997).

Source: Gresham v. UTBM,  09-04-00155-CV (Tex. App. Beaumont, February 3, 2005, pet denied)


Brazoria County v. Gelder (Tex.App.- Houston [14th Dist.] Sep. 17, 2009) (Sullivan)  
Texas Tort Claims Act, dangerous road condition, no waiver of immunity)  
Justice K. Sullivan    
Before Justices Seymore, Brown and Sullivan  
14-08-01092-CV  Brazoria County v. Kym Van Gelder   
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Patrick Edward Sebesta

TSU v. Gilford (Tex.App.-Houston [1st Dist.] Jan. 8, 2009)(Wilson)
TTCA, plea to the jurisdiction properly denied)
AFFIRM TC JUDGMENT: Opinion by Judge Wilson
Before Chief Justice Radack, Judge Wilson, Justice Higley
01-08-00399-CV        Texas Southern University v. Mary Gilford
Appeal from 295th District Court of Harris County
Trial Court
Judge: Hon. Tracy Christopher

Rorie v. Harris County (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Boyce)
(TTCA, knowledge of dangerous condition)
Justice Boyce
14-06-01146-CV Mark Rorie v. Harris County
Appeal from Co Civil Ct at Law No 2 of Harris County
Trial Court Judge:
Judge Gary Michael Block

Harris County v. Gerber (Tex.App.- Houston [14th Dist.] Jul. 10, 2007)(Hudson)(TTCA, premises defect)
REVERSED AND DISMISSED: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-01096-CV Harris County v. Hollie Gerber
Appeal from 165th District Court of Harris County (
Judge Elizabeth Ray)