Plaintiff Sues Harris County Corrections and Employee
Paula Trejo alleged that she was injured because an employee of the Harris County Community Supervision and Corrections Department operated a motor vehicle negligently. She sued both the County and the employee. The employee made a motion with the trial court to dismiss Trejo's lawsuit under Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f), which provides that if a plaintiff sues a government employee for conduct that is within the scope of the employee's employment, and the lawsuit could have been brought against the employing government unit alone, the suit is considered to be against the employee in his or her official capacity only. If the named employee files a motion to dismiss before the trial court, and the plaintiff fails to dismiss the employee and name the governmental unit within 30 days after the employee files the motion to dismiss, the suit against the employee will be dismissed.
Plaintiff Dismisses Claims and Re-Files
Trejo dismissed her claims against both the employee and the Department, but more than 30 days after the employee's motion. Trejo then re-filed her suit against the Department and the employee for the same claim. The Department moved for summary judgment, asking the trial court to throw out the plaintiff's claims, even though the Department conceded that the employee involved was acting within the scope of his employment. The Department's basis was that Trejo had chosen to sue the employee and failed to substitute the Department as a defendant within Section 101.106(f)'s 30-day time period. The trial court denied the Department's motion, and the Department appealed, basing its appeal on the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. This provision bars a suit against a governmental entity when the plaintiff has sued an employee, unless the governmental unit consents to be sued.
Texas Court of Appeals Affirms Trial Court Ruling for Plaintiff
The Texas Court of Appeals for the Fourteenth District, in Houston, found the Department to be wrong. The Court of Appeals relied on a Texas Supreme Court decision where the Supreme Court held that this portion of subsection (f) did not bar lawsuits like the plaintiff's but merely provided a procedure for an employee sued only in his or her official capacity to be dismissed from a lawsuit. Furthermore, the Court held that subsection (b) also did not apply when the employee was sued only in his official capacity, as long as immunity was otherwise waived under the Texas Tort Claims Act (TTCA). In this case, the Department conceded that the employee was acting in his official capacity when he allegedly contributed to Trejo's injury, and therefore immunity under the TTCA was waived.
The Court of Appeals overruled the Department's only issue on appeal and affirmed the trial court's order denying the Department's motion for summary judgment. The plaintiff's claims against both the employee and the Department were allowed to proceed to trial.
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