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

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 2011) [Tort Claims Act]; Tex. Lab. Code Ann. § 21.001–.556 (West 2011) [Texas
Commission on Human Rights Act (TCHRA)]. The 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, in an effort to avoid the Tort Claims Act’s restrictions, claimants under the Act sometimes
chose to sue the employee of a governmental entity, rather than the entity itself. Id. at 656. Thus, in
1985, the Legislature added to the Act a provision that prevented claimants from suing government
employees after settlement or adjudication of claims against the government employer when the claims
involved 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 employment or, in the alternative, that the employee was outside
the scope of his 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 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.

Under the amended provision, entitled “
Election of Remedies,” a claimant’s filing of suit operates as a
binding election between pursuing her tort claims against a governmental entity or pursuing them
against its employees individually. Tex. Civ. Prac. & Rem. Code Ann. § 101.106. The provision states:

(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.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant
from any suit against or recovery from any employee of the same governmental unit regarding the same
subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party
obtaining the judgment from any suit against or recovery from the governmental unit.

(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.

(f) If a suit is filed against an employee of a governmental unit based on conduct within the general
scope of that employee’s employment and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in the employee’s official capacity
only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff
files amended pleadings dismissing the employee and naming the governmental unit as defendant on or
before the 30th day after the date the motion is filed.

Id.

      The Supreme Court of Texas has recognized that the Tort Claims Act’s election-of-remedies
provision imposes “irrevocable consequences” on a claimant’s decision regarding whom to sue, such
that a 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.





Tara Partners, Ltd. v. City of South Houston (Tex.App.- Houston [14th Dist.] Jan. 13, 2009)(Seymore)
(
city governmental immunity) declaratory judgment and attorney's fees waiver of sovereign immunity)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore  
Before Justices Frost, Seymore and Guzman
14-07-00330-CV  Tara Partners, Ltd., Granada Terrace, Ltd., David R. Wise, 1606 Savannah LLC,
Windsor Gardens Ltd., and Freeport Villa Brazos Apartments, Ltd. v. City of South Houston
Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson
Concurring Opinion by Justice Frost







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