section 101.106 immunity in Texas

2017See Newman v. Obersteller, 960 S.W.2d 621 , 622-623 (Tex. 1997) (holding that the original version of § 101.106(e) conferred immunity on governmental officials when a case against a governmental unit arising out of the same facts had proceeded to judgment).

2013A. Applicable Law “Section 101.106 is an immunity statute.” Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997).

2010Calderon, 221 S.W.3d at 921-22 (discussing immunity under section 101.106(b)); Phillips v. Dafonte, 187 S.W.3d 669, 672-74 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

2010Calderon, 221 S.W.3d at 921-22 (discussing immunity under section 101.106(b)); Phillips v. Dafonte, 187 S.W.3d 669, 672-74 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

2021Ctr. at Hous. v. Crowder, 349 S.W.3d 640, 643 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also Franka v. Velasquez, 332 S.W.3d 367 , 371 n. 9 (Tex. 2011) (stating that § 101.106 confers immunity in some instances to employees of governmental units). 7

2020Code Ann. §§ 51.014, 101.106)) (recognizing an appellate court’s jurisdiction pursuant to section 51.014(a)(5) of the Civil Practice and Remedies Code over trial court rulings on governmental immunity under section 101.106 of the TTCA), disapproved of on other grounds, Franka v. Velasquez, 332 S.W.3d 367 , 382 n.67 (Tex. 2011).

2011Briggs, 262 S.W.3d at 394 ; Calderon, 221 S.W.3d at 922 . 15 Although the courts in Briggs and Calderon both agreed that subsection 101.106(b) bestows permanent immunity upon a governmental employer from the moment that a plaintiff files suit against a governmental employee, both courts agreed that the immunity is subject to removal through subsection 101.106(f). 262 S.W.3d at 394 ; 221 S.W.3d at 923 .

2011Although the courts in Briggs and Calderon both agreed that subsection 101.106(b) bestows permanent immunity upon a governmental employer from the moment that a plaintiff files suit against a governmental employee, both courts agreed that the immunity is subject to removal through subsection 101.106(f). 262 S.W.3d at 394 ; 221 S.W.3d at 923 .

2011Ctr. at Houston v. Crowder, 349 S.W.3d 640, 643 (Tex.App.-Houston [14th Dist.] 2011, no pet.); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); see also Franka v. Velasquez, 332 S.W.3d 367 , 371 n. 9 (Tex.2011) (stating that section 101.106 confers immunity in some instances to employees of governmental units).

2011See Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); see also Franka, 332 S.W.3d at 372, n. 9 (concluding that section 101.106(f) is an immunity statute).

2004See id. § 101.106; Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995).

2001See Thomas v. Oldham , 895 S.W.2d 352, 357 (Tex. 1995) (asserting that section 101.106 provides immunity for the governmental employee contemporaneously with a judgment in an action against a governmental unit involving the same subject matter).

1999Brand v. Savage, 920 S.W.2d 672, 674 (Tex.App. — Houston [1st Dist.] 1995, no writ), citing Cox v. Klug, 855 S.W.2d 276, 280 (Tex.App. — Amarillo 1993, no writ) (holding summary judgment in favor of government hospital based on plaintiffs failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex.App. — Dallas 1992, no writ) (“Section 101.106 provides automatic derivative immunity for a governmental employee.”).

1995See Cox v. King, 855 S.W.2d 276, 280 (Tex.App.— Amarillo 1993, no writ) (holding final summary judgment in favor of government hospital based on plaintiffs failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex.App.—Dallas 1992, no writ) (“Section 101.106 provides automatic derivative immunity for a governmental employee.”).

2013In short, section 101.106(f) extends governmental immunity to acts of individual governmental employees acting within the scope of their employment. 3 LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73 , 89–90 (Tex. 2011). 1 The Giauques originally raised a claim for federal civil-rights violations but later amended their complaint to delete their federal claim. 2 The Giauques’ attempt to place their common-law tort claims outside the reach of the Act is of no moment.

2013In short, section 101.106(f) extends governmental immunity to acts of individual governmental employees acting within the scope of their employment. 3 LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89-90 (Tex.2011).

2005Id.

1999Brand v. Savage, 920 S.W.2d 672, 674 (Tex.App. — Houston [1st Dist.] 1995, no writ), citing Cox v. Klug, 855 S.W.2d 276, 280 (Tex.App. — Amarillo 1993, no writ) (holding summary judgment in favor of government hospital based on plaintiffs failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex.App. — Dallas 1992, no writ) (“Section 101.106 provides automatic derivative immunity for a governmental employee.”).

2017Thus “[b]y its plain language and very nature, the election-of-remedies provision is ... a jurisdictional constraint^] ... a jurisdictional requirement.” Esparza, 369 S.W.3d at 249-51 ; accord Webber-Eells, 327 S.W.3d at 240 (stating that section 101.106 involves governmental immunity and is jurisdictional statute).

2012Esparza , No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed ) (op. on reh’g ). [6] The Supreme Court of Texas has stated that that “section 101.106 is an immunity statute.” Newman v. Obersteller , 960 S.W.2d 621, 623 (Tex. 1997).

2021Ctr. at Hous. v. Crowder, 349 S.W.3d 640, 643 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also Franka v. Velasquez, 332 S.W.3d 367 , 371 n. 9 (Tex. 2011) (stating that § 101.106 confers immunity in some instances to employees of governmental units). 7

2011Ctr. at Houston v. Crowder, 349 S.W.3d 640, 643 (Tex.App.-Houston [14th Dist.] 2011, no pet.); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); see also Franka v. Velasquez, 332 S.W.3d 367 , 371 n. 9 (Tex.2011) (stating that section 101.106 confers immunity in some instances to employees of governmental units).

2016“Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 225–26 (Tex. 2004); Fink, 477 S.W.3d at 465 (noting that although we generally review 5 order on motion to dismiss for abuse of discretion, proper standard of review is determined by substance of issue to be reviewed, not caption of motion).

2016“Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Fink, 477 S.W.3d at 465 (noting that although we generally review order on motion to dismiss for abuse of discretion, proper standard of review is determined by substance of issue to be reviewed, not caption of motion).

2009See Phillips , 187 S.W.3d at 672-73 (describing section 101.106(f) as authorizing immunity from suit); see generally Baylor Coll. of Med. v. Hernandez , 208 S.W.3d 4, 9-10 (Tex. App. C Houston [14th Dist.] 2006, pet. denied) (distinguishing between statutes granting immunity from suit and statutes granting immunity from liability).

2009See Phillips, 187 S.W.3d at 672-73 (describing section 101.106(f) as authorizing immunity from suit); see generally Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 9-10 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (distinguishing between statutes granting immunity from suit and statutes granting immunity from liability).

2005See, e.g., Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004); City of Lancaster, 883 S.W.2d at 653 .

2005See, e.g ., Ballantyne v. Champion Builders, Inc. , 144 S.W.3d 417, 424 (Tex. 2004); City of Lancaster , 883 S.W.2d at 653 .

1999Brand v. Savage, 920 S.W.2d 672, 674 (Tex.App. — Houston [1st Dist.] 1995, no writ), citing Cox v. Klug, 855 S.W.2d 276, 280 (Tex.App. — Amarillo 1993, no writ) (holding summary judgment in favor of government hospital based on plaintiffs failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex.App. — Dallas 1992, no writ) (“Section 101.106 provides automatic derivative immunity for a governmental employee.”).

1995See Cox v. King, 855 S.W.2d 276, 280 (Tex.App.— Amarillo 1993, no writ) (holding final summary judgment in favor of government hospital based on plaintiffs failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex.App.—Dallas 1992, no writ) (“Section 101.106 provides automatic derivative immunity for a governmental employee.”).

2017Thus “[b]y its plain language and very nature, the election-of-remedies provision is ... a jurisdictional constraint^] ... a jurisdictional requirement.” Esparza, 369 S.W.3d at 249-51 ; accord Webber-Eells, 327 S.W.3d at 240 (stating that section 101.106 involves governmental immunity and is jurisdictional statute).

2011Webber-Eells, 327 S.W.3d at 240 .

2025Of the "with prejudice" courts, only one Sykes's claims against Harris County with appears to have made any attempt to explain why prejudice, Carl Borchers is entitled to derivative dismissal based on sovereign immunity should be immunity under section 101.106 of the Texas Tort preclusive; the explanation in that case was that Claims Act. plaintiffs cannot amend their pleadings or present Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004) evidence on pleas to the jurisdiction7 —both of The only valid explanation for today's holding which assertions are wrong.8 is that changing the motion's nam

2005In 2004, the Texas Supreme Court reiterated its holding in Newman that when a trial court has dismissed tort claims against a governmental entity on the ground that the entity's governmental immunity has not been waived by the Tort Claims Act, the employee whose acts gave rise to the claim against the governmental entity "is entitled to derivative immunity under section 101.106 of the Texas Tort Claims Act.” Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex.2004).

2017Garcia, 253 S.W.3d at 656 .

2011Prao. & Rem.Code ANN. § 101.106; See also Garcia, 253 S.W.3d at 657 (“Under the Tort Claims Act’s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).

2025Thus, “an appeal may be taken from orders denying an assertion of immunity . . . regardless of the procedural vehicle used.” Id.; see Krause v. Mayes, 652 S.W.3d 880 , 885 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (concluding that Section 51.014(a)(5) provides for interlocutory appeal from order denying employee’s 6 assertion of immunity under Section 101.106 in motion to dismiss); Luchak v. McAdams, 379 S.W.3d 361 , 363–64 (Tex. App.—Waco 2012, pet. dism’d) (permitting interlocutory appeal from denial of Section 101.106(f) motion to dismiss claims brought against employees of governmenta

2024Wolf cites to City of El Paso v. Heinrich to support her position, stating it supports her claim that “[a] party can maintain a suit to determine its rights without legislative permission[]” found in section 101.106. 284 S.W.3d 366, 370 (Tex. 2009).

2019See Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 357 (Tex. 2013) (citations omitted) (“enacting subsection (f), the Legislature ‘foreclose[d] suit [under the TTCA] against a government employee in his individual capacity if he was acting within the scope of employment.