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The City of Houston, Appellant v. Jessica Gunn, Appellee

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Concurring

CONCURRING OPINION

I concur in the judgment. The result is controlled by the forced-election analysis of this court’s recent decision in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.-Houston [1st Dist.] Oct. 7, 2011, no pet. h.). That opinion explained that when a tort claimant files suit against both a governmental unit and its employee, the election-of-remedies provision of the Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e), is automatically invoked, and that statute forces an immediate election of the governmental unit, rather than the employee, as the defendant in the lawsuit. See Esparza, 2011 WL 4925990, at *10.

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