NAVIGATING THE ELECTION-OF-REMEDIES PROVISION OF THE TEXAS TORT CLAIMS ACT

Texas Adjutant General’s Office v. Ngakoue
Supreme Court of Texas, No. 11-0686 (August 30, 2013)
Justice Lehrmann (Opinion); Justice Boyd (Dissent)
To prevent plaintiffs from simultaneously pursuing claims alternatively against state employees in their individual capacities and against the governmental unit that employs them, the Legislature enacted an election-of-remedies provision as part of the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE § 101.106. In a 5-4 decision the Texas Supreme Court construed, and attempted to harmonize, two subsections of that provision. Specifically, the majority held that a plaintiff’s failure to comply strictly with subsection (f) did not result in automatic dismissal and bar of that plaintiff’s claims against the governmental entity that employed the individual originally sued by the plaintiff—even though subsection (b) would seem to suggest it should.

Subsection 101.106(b) of the Texas Tort Claims Act (“TTCA”) provides: (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. 
But subsection (f) of that same statute says:
(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.
Ngakoue sued Barnum, an employee of the Texas Adjutant General’s Office (“TAGO”), for damages arising out of a car wreck. Barnum moved to dismiss pursuant to subsection 101.106(f). Within the 30-day time limit, Ngakoue amended, adding TAGO as a defendant and expressly pleading that Barnum was acting in the course and scope of his employment with TAGO. But, while Ngakoue styled her amended pleading “Plaintiff’s First Amended Petition & Motion to Dismiss as to Defendant Franklin Barnum,” she failed to dismiss Barnum in the body of her amended pleading. As a result, both Barnum and TAGO moved for dismissal—Barnum under subsection (f), and TAGO under subsection (b). The trial court denied both motions; the court of appeals reversed as to Barnum, ordering his dismissal, but affirmed as to TAGO, which took the issue to the Supreme Court.

Under the dissent’s view, subsection (f) embodies an exception to the draconian result prescribed by subsection (b)—immediate and permanent bar of Ngakoue’s claims against TAGO, Barnum’s employer. But such an exception requires strict compliance with its provisions, the dissent reasoned, and, because Ngakoue fell short in her amended pleading, subsection (b) of the statute required dismissal of her claims against TAGO, just as subsection (f) mandated dismissal of those against Barnum.

The majority, however, concluded that subsection (b) was never implicated in this case. Subsection (f) provides that a suit against an employee for acts taken in the scope of his employment is considered a suit against him in his “official capacity only.” And because suits against governmental employees in their official capacities seek to impose liability only against the governmental entity and not the employee individually, such a suit “is considered to have been brought against the government, not the employee.” Therefore, the majority reasoned, subsection (b) was never triggered here, because there was never truly “a suit against an[] employee of a governmental unit.” So, while subsection (f) did mandate dismissal of the claims against Barnum, Ngakoue’s claims against TAGO were not barred, and the trial court correctly denied its motion to dismiss. Further, the majority observed, the construction it adopted would further a “central goal” of the TTCA: to allow certain types of claims to proceed against the government—such as that brought here by Ngakoue—where they were otherwise permitted by the Act.

Print