50:5 “Election” of Remedies: The City of Houston, the Sister Courts, and the Mission to Interpret the Tort Claims Act

Abstract

Consider this hypothetical: the Deputy, a City employee operating an automobile within the scope of his employment, negligently collides with Plaintiff and inflicts severe injury. By operation of statute, if Plaintiff elects to sue the City for her injuries, she is forever barred from suing the Deputy. Likewise, if Plaintiff elects to sue the Deputy, she is forever barred from suing the City.  The issue presented in this Comment is simple: under Texas law, if Plaintiff elects to sue both the City and the Deputy simultaneously, does she forever bar herself from suing either?

In 2003, under the guise of tort reform, the Texas Legislature amended the portion of the Texas Civil Practices and Remedies Code commonly known as the Texas Tort Claims Act to include additional safeguards against claimants circumventing its restrictions. One particular provision created by the amendment, entitled “Election of Remedies,” purports to force claimants to elect “at the outset” whether to bring suit against the governmental unit or the employee in his or her individual capacity. The statute’s malleable clauses and conflicting interpretations have resulted in a split of authority among the Texas Courts of Appeals, and one particular split between the First and Fourteenth Courts in Houston is the subject of this Comment.

Under the City of Houston’s interpretation of the statute, a claimant must “choose between suing either the City or its employee, and a claimant who instead sues both loses the opportunity to sue either.” In City of Houston v. Esparza and Amadi v. City of Houston, both the First and Fourteenth Courts of Appeals unanimously struck down this controversial interpretation, but the remarkably different methodologies used to do so has left Texas law on the issue in a state of flux. This Comment analyzes the practical implications and any potential reconciliation of the Esparza and Amadi decisions, and it concludes with a detailed analysis of the manner in which claimants should utilize the statute and subsequent case law to maximize their available claims.