Unreported / Non-Citable
Background
Dwane Mary Wilson sued the City of Houston and city employee Jonathan Earl Clark after Clark allegedly crashed a City firetruck into her. Wilson alleged that Clark was acting within the course and scope of his City employment.
Clark moved under Texas Rule of Civil Procedure 91a to dismiss the claims against him, relying on sections 101.106(a) and 101.106(e) of the Texas Civil Practice and Remedies Code. The City did not file the motion. After the trial court denied Clark’s motion, he brought an interlocutory appeal.
The Court’s Holding
The First Court of Appeals affirmed. Applying its recent decisions in Hsu v. Hernandez and City of Houston v. Tran, the court held that Clark was not entitled to dismissal under section 101.106(a) because Wilson sued him in his official capacity, not his individual capacity.
Section 101.106(e) also did not support dismissal because that provision requires the governmental unit to file the motion, and Clark—not the City—had done so. The court therefore overruled Clark’s sole appellate issue and upheld the denial of his Rule 91a motion.
Key Takeaways
- Section 101.106(a) did not require dismissal because Clark was sued in his official rather than individual capacity.
- An employee cannot obtain dismissal under section 101.106(e) by filing the motion personally; the governmental unit must file it.
- The appellate court affirmed the denial of Clark’s Rule 91a motion without resolving the merits of Wilson’s underlying claims.
Why It Matters
The decision reinforces the procedural distinctions governing election-of-remedies dismissals under the Texas Tort Claims Act. Government employees seeking dismissal must rely on the subsection that fits the capacity in which they were sued and, when invoking section 101.106(e), must have the governmental employer file the required motion.