Opinion issued January 13, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00469-CV ——————————— BOYD DWAYNE QUINCY, Appellant V. CRYSTAL DOMINICK BRANCH, INDIVIDUALLY AND AS NEXT FRIEND OF T.W. AND T.N.W., MINORS, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2024-56531
MEMORANDUM OPINION
This appeal concerns the election-of-remedies provision of the Texas Tort
Claims Act (TTCA)1 and the trial court’s subject matter jurisdiction over a claim
brought against a government employee acting in his official capacity.
1 See TEX. CIV. PRAC. & REM. CODE § 101.106. Boyd Wayne Quincy appeals from the trial court’s interlocutory order
denying his Rule 91a motion to dismiss the negligence claim brought against him by
Crystal Dominick Branch, individually, and as next friend of her minor children
T.W. and T.N.W.2 Quincy argues that the election-of-remedies provision of the
TTCA required the trial court to dismiss Branch’s claim for lack of subject matter
jurisdiction. We agree.
We reverse and render judgment dismissing Branch’s claim against Quincy.
Background
This lawsuit arises from a motor vehicle collision. Branch was driving
southbound on Wayside Drive in Houston. And Quincy was operating a dump truck
for the City of Houston. According to Branch, Quincy failed to yield the right-of-
way and struck her car. The collision caused Branch’s vehicle to roll over and
resulted in injuries to her and her children.
Branch sued Quincy and the City for negligence. She pleaded that Quincy
“was driving a dump truck in the scope of his employment for [the] City of
Houston.” She further pleaded that he “was performing duties of his office or
employment and was in or about the performance of tasks lawfully assigned to him
by competent authority” and “was acting within the course and scope of
such . . . employment at the time of the collision that made the basis of this lawsuit.”
2 See TEX. R. CIV. P. 91a. 2 And he was therefore “acting within the scope of employment as that term is
understood under the Texas Tort Claims Act.” Branch additionally pleaded that
“[the] City of Houston is legally responsible to Plaintiffs for the negligent conduct
of [Quincy] because he was an employee of the City.”
Branch globally asserted that the trial court had “subject matter jurisdiction
over this suit against Defendants under the [TTCA] because the Texas Legislature
waived the City’s sovereign immunity for claims involving personal injury caused
by negligence in connection with a motor vehicle collision.”3
Neither Quincy nor the City answered the suit. Instead, they each filed a 91a
motion to dismiss asserting lack of subject matter jurisdiction under the TTCA.
Citing to the TTCA’s election-of-remedies provision, Quincy argued that, “by filing
suit against both [the City] and Quincy,” Branch had “irrevocably elected [her]
remedy” and was “forever barred from suing [him] individually.” Thus, according
to Quincy, Branch’s claim against him has no basis in law and must be dismissed.
The City sought dismissal of the claim against it on the ground that Branch had failed
to plead a valid waiver of its governmental immunity.
The trial court denied both motions. Only Quincy appeals.
3 See TEX. CIV. PRAC. & REM. CODE § 101.021.
3 Appellate Jurisdiction and Procedural Posture
As a threshold matter, we must determine our jurisdiction to review the trial
court’s interlocutory order denying Quincy’s Rule 91a Motion to Dismiss and the
procedural posture for our review.4 We generally do not have jurisdiction over an
appeal from an interlocutory order denying a Rule 91a motion to dismiss. City of
Hou. v. Tran, No. 01-24-00235-CV, 2025 WL 309723, at *2 (Tex. App.—Houston
[1st Dist.] Jan. 28, 2025, pet. denied) (mem. op.).
But it is well-established that we look to the substance of a motion to
determine the relief sought, and not merely to its title, in determining its effect.
Surgitek, Bristol–Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999). In
substance, Quincy’s motion seeks dismissal of Branch’s claim against him for lack
of subject-matter jurisdiction—asserting immunity as conferred by section 101.106
of the TTCA. See Seward v. Santander, 713 S.W.3d 341, 353 (Tex. 2025) (“A
governmental employee’s motion that invokes the right to dismissal under the
[TTCA’s] election-of-remedies provision is, in effect, an assertion of governmental
immunity.”); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.
2004) (“[I]mmunity from suit deprives a court of subject matter jurisdiction.”).
4 Although neither party contends that we lack appellate jurisdiction, we have a duty to assess our own jurisdiction sua sponte. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004); see Heckman v. Williamson Cnty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (“[C]ourts always have jurisdiction to determine their own jurisdiction.” (internal quotations omitted)). 4 “Generally, immunity from suit . . . is properly asserted in a plea to the
jurisdiction.” City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297,
299 (Tex. 2017). However, the Texas Supreme Court has held that an appeal may
be taken from an interlocutory order denying an assertion of immunity, as provided
in section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, “regardless
of the procedural vehicle used.” Austin State Hosp. v. Graham, 347 S.W.3d 298, 301
(Tex. 2011); see TEX. CIV. PRAC. & REM. CODE § 51.014(a)(5) (authorizing appeal
from interlocutory order denying motion for summary judgment based on assertion
of immunity by an individual who is an officer or employee of the state or political
subdivision); Tran, 2025 WL 309723, at *2 (interlocutory appeal of order denying
Rule 91a motion asserting immunity authorized under section 51.015(a)(5)).
Additionally, section 51.014(a)(8) vests an appellate court with jurisdiction
over an interlocutory appeal from the denial of a plea to the jurisdiction by a
governmental unit. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). And the supreme
court has held that a person sued in an official capacity may appeal the denial of a
jurisdictional plea in the same way. See Texas A&M Univ. Sys. v. Koseoglu, 233
S.W.3d 835, 845 (Tex. 2007).
Here, the only basis for this Court’s jurisdiction over Quincy’s interlocutory
appeal is that his Rule 91a motion was used to challenge the trial court’s subject-
matter jurisdiction and therefore it effectively constitutes a plea to the jurisdiction.
5 See Smedley, 533 S.W.3d at 299 (stating that “[t]his Court considers ‘plea to the
jurisdiction’ not to refer to a ‘particular procedural vehicle,’ but rather to the
substance of the issue raised,” and holding that defendant’s Rule 91a motion
constituted a plea to the jurisdiction “for interlocutory-appeal purposes”); Harris
Cnty. v. Deary, 695 S.W.3d 566, 577 (Tex. App.—Houston [1st Dist.] 2024, no pet.)
(“When a Rule 91a motion seeks dismissal on jurisdictional grounds based on
governmental immunity, we may treat the motion as a plea to the jurisdiction, for
which we do have authority to review interlocutory orders.”).5
Therefore, we review the trial court’s interlocutory order using the standard
of review for a plea to the jurisdiction challenging only the pleadings.6 See Specialty
Assoc. of W. Hou., PLLC v. Adams, No. 01-21-00092-CV, 2022 WL 3452329, at *4
(Tex. App.—Houston [1st Dist.] Aug. 18, 2022, pet. denied) (mem. op.) (“To the
extent that the Rule 91a motion challenged the trial court’s subject-matter
jurisdiction, the motion effectively constituted a plea to the jurisdiction, and we
5 See also City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 n.1 (Tex. App.— Austin 2014, no pet.) (“The only basis for the Court’s jurisdiction over this appeal is that here the Rule 91a motion was used to challenge the trial court’s subject- matter jurisdiction and therefore effectively constitutes a plea to the jurisdiction.”). 6 Rule 91a provides that it “is in addition to, and does not supersede or affect, other procedures that authorize dismissal.” TEX. R. CIV. P. 91a.9.
6 review the trial court’s judgment using the standard of review for a plea to the
jurisdiction.”).7
TTCA Election of Remedies
Quincy argues that the trial court erred in denying his motion to dismiss
Branch’s claim against him because the trial court lacked subject matter jurisdiction
over her claim. According to Quincy, “Branch’s decision to sue both Quincy and
[the City] constituted an irreversible election to sue [the City], which forever bars
any suit or recovery against Quincy.”
A. Standard of Review
Whether a court has subject matter jurisdiction is a question of law that we
review de novo. Miranda, 133 S.W.3d at 226. When a plea to the jurisdiction
challenges only the pleadings,8 we determine whether the pleader has met her burden
7 See also Lexington v. Treece, No. 01-17-00228-CV, 2021 WL 2931354, at *13–15 (Tex. App.—Houston [1st Dist.] July 13, 2021, pet. denied) (mem. op.) (“[B]ecause [defendants] used a rule 91a motion to challenge the probate court’s subject-matter jurisdiction . . . , the motion effectively constitutes a plea to the jurisdiction, and we review the probate court’s judgment using the standard of review for a plea to the jurisdiction challenging only the pleadings.”); Dall. Cnty. Republican Party v. Dall. Cnty. Democratic Party, No. 05-18-00916-CV, 2019 WL 4010776, at *4–5 (Tex. App.—Dallas Aug. 26, 2019, pet. denied) (mem. op.) (discussing challenges to subject-matter jurisdiction through Rule 91a motions); Wooley v. Schaffer, 447 S.W.3d 71, 83–84 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (Frost, C.J., concurring) (comparing and contrasting Rule 91a motions and jurisdictional pleas). 8 There are two general categories of pleas to the jurisdiction: (1) those that challenge the pleadings and (2) those that challenge the existence of jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 7 to allege facts that affirmatively establish the trial court’s subject matter jurisdiction
to hear the case. Id. In our review, “we construe the pleadings liberally in favor of
the plaintiff and look to the pleader’s intent.” Id. If the pleadings lack sufficient
facts to “affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency” and the plaintiff should be afforded the opportunity to amend.
Id. at 226–27. On the other hand, if the pleadings affirmatively negate the existence
of jurisdiction, then the plea may be granted without allowing the plaintiff an
opportunity to amend. Id. at 227.
B. Applicable Law
Under the doctrine of governmental immunity, a governmental entity cannot
be held liable for the torts of its employees unless its immunity has been waived.
City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). The TTCA was
enacted to provide a limited waiver of immunity for certain suits against
governmental entities for property damage, injury, and death “proximately caused
by the wrongful act or omission or the negligence of an employee acting within his
scope of employment.” TEX. CIV. PRAC. & REM. CODE § 101.021(1); Ryder
Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015).
Subsequently, plaintiffs sought to avoid the TTCA’s parameters and caps by suing
governmental employees instead. Mission Consol. Ind. Sch. Dist. v. Garcia, 253
8 S.W.3d 653, 656 (Tex. 2008). To prevent such circumvention, the Texas Legislature
enacted an “election-of-remedies” provision—section 101.106. Id.; see TEX. CIV.
PRAC. & REM. CODE § 101.106.
One of the purposes of the election-of-remedies provision is to encourage
plaintiffs “to pursue lawsuits against governmental units rather than their employees
when suit is based on the employee’s conduct within the scope of employment.”
Alexander v. Walker, 435 S.W.3d 789, 789 (Tex. 2014) (quoting Tex. Adjutant
Gen.’s Office v. Ngakoue (TAGO), 408 S.W.3d 350, 352 (Tex. 2013)). It requires a
plaintiff to make an “irrevocable election” at the outset of the suit as to whether to
sue the governmental entity or a governmental employee in his individual capacity.
Garcia, 253 S.W.3d at 657.9 The legislature mandates this to reduce the resources
expended by governmental entities and employees in defending against redundant
litigation and alternative theories. Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex.
2017). And our supreme court has acknowledged this purpose by holding that a
common-law suit brought against a government employee for conduct within the
scope of his government employment is considered to have been brought against the
government rather than the employee—and thus does not bar suit against the
9 That is, whether the employee acted independently and is solely liable or acted within the scope of his employment—such that the governmental unit is vicariously liable. Mission Consol. Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). 9 governmental employer. Alexander, 435 S.W.3d at 789–90 (citing TAGO, 408
S.W.3d at 357–58).
Based on these principles, Quincy maintains that subsections (a), (e), and (f)
of the election-of-remedies provision required the trial court to dismiss Branch’s suit
against him. We address only subsection (f) because it is dispositive of this appeal.
See TEX. R. APP.P. 47.1.
C. Analysis
Section 101.106(f) of the TTCA states that “[i]f 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 [the
TTCA] against the governmental unit, the suit is considered to be against the
employee in the employee’s official capacity only.” TEX. CIV. PRAC. & REM. CODE
§ 101.106(f).
It further provides that, “[o]n 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.” Id.
“By adopting section 101.106(f), the Legislature has effectively mandated that
only a governmental unit can be sued for a governmental employee’s work-related
tortious conduct.” Garza v. Harrison, 574 S.W.3d 389, 393–94, 399 (Tex. 2019).
10 And it “requires courts to grant a motion to dismiss a lawsuit against a governmental
employee sued in an ‘official capacity’ but allows the governmental unit to be
substituted for the employee.” Id. at 393.
A governmental employee is “sued in an official capacity when the suit (1) is
‘based on conduct within the general scope of that employee’s employment’ and
(2) could have been brought under [the TTCA] against the governmental unit.” Id.
at 394 (quoting TEX. CIV. PRAC. & REM. CODE § 101.106(f)). “Properly construed,
[these] two conditions are met in almost every negligence suit against a government
employee.” Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011).
Under the first factor, a governmental employee is generally a person “who is
in the paid service of a governmental unit,” with exceptions. TEX. CIV. PRAC. & REM.
CODE § 101.001(2). The TTCA broadly defines “scope of employment” as “the
performance for a governmental unit of the duties of an employee’s office or
employment” and includes “being in or about the performance of a task lawfully
assigned to an employee by competent authority.” Garza, 574 S.W.3d at 400
(quoting TEX. CIV. PRAC. & REM. CODE § 101.001(5)).
Under the second factor, “any tort claim against the government is brought
under [TTCA] for purposes of section 101.106, even if the Act does not waive
immunity.” Franka, 332 S.W.3d at 375.
11 Here, Branch expressly sued Quincy in his official capacity. Branch
specifically alleged in her live pleading that Quincy was “driving a dump truck in
the scope of his employment for [the City],” failed to yield the right-of-way, and
struck her car. She states that, at the time of the collision, Quincy “was performing
[the] duties of his office or employment and was in or about the performance of tasks
lawfully assigned to him by competent authority” and was therefore “acting within
the scope of his employment as that term is understood under the [TTCA].” It is
undisputed that the City of Houston is a governmental entity. City of Hou. v.
Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
Thus, there can be no dispute that Branch based her suit on Quincy’s conduct
as a governmental employee acting within the scope of his employment. See TEX.
CIV. PRAC. & REM. CODE § 101.106(f); see also Houston First Am. Sav. v. Musick,
650 S.W.2d 764, 767 (Tex. 1983) (assertion of fact in live pleading regarded as
judicial admission and conclusively established).10 Indeed, Branch does not allege
any facts suggesting that Quincy was pursuing an independent course of conduct.
10 See, e.g., Harris Co. v. Doe, No. 01-24-00096-CV, 2025 WL 3165392, at *4 (Tex. App.—Houston [1st Dist.] Nov. 13, 2025, no pet.) (mem. op.) (“The parties do not dispute that [the employees] were acting in the course and scope of their official duties during the complained-of conduct—in fact, appellee specifically sued them in their official capacities.”); Carpenter v. Alijanipour, No. 01-24-00307-CV, 2025 WL 1460702, at *2 (Tex. App.—Houston [1st Dist.] May 22, 2025, pet. denied) (mem. op.).
12 See Garza, 574 S.W.3d at 400; Cerullo v. Johnson, No. 05-24-00676-CV, 2025 WL
1712078, at *4 (Tex. App.—Dallas June 18, 2025, no pet.) (mem. op.).
With respect to the second factor, there can also be no dispute that Branch’s
negligence suit against Quincy is a tort claim that “could have been brought under
this chapter against the governmental unit.” See TEX. CIV. PRAC. & REM. CODE
§ 101.106(f); Franka, 332 S.W.3d at 375 (“[A]ny tort claim against the government
is brought under [TTCA] for purposes of section 101.106, even if the Act does not
waive immunity.”) Indeed, Branch’s suit already includes a claim against the City
under the TTCA.11 The second element of subsection (f) is thus also satisfied. See
TEX. CIV. PRAC. & REM. CODE § 101.106(f); Garcia, 253 S.W.3d at 659 (“[A]ll tort
theories alleged against a governmental unit, whether it is sued alone or together
with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of
section 101.106.”).
Accordingly, Quincy was entitled to dismissal of Branch’s suit against him
under subsection (f) of the TTCA’s election-of-remedies provision—unless Branch
amended her pleadings to substitute the government as the defendant. See TEX. CIV.
PRAC. & REM. CODE §101.106(f); see also Stinson v. Fontenot, 435 S.W.3d 793, 794
(Tex. 2014). Branch had already named the City as a defendant—but she did not
11 See, e.g., Harris Co., 2025 WL 3165392, at *4 (“[T]he parties do not dispute that the suit could have been brought under the TTCA against the governmental unit— in fact, appellee sued Harris County under the TTCA.”).
13 amend her pleadings to drop Quincy from the suit as required by subsection (f). See
TEX. CIV. PRAC. & REM. CODE §101.106(f).
We therefore sustain Quincy’s sole issue and hold that the trial court erred in
denying Quincy’s motion to dismiss Branch’s claim against him. See id.; Garza, 574
S.W.3d at 400 (section 101.106(f), when satisfied, “mandates dismissal”).12 We
further conclude that remand is unnecessary here because Branch’s pleadings, taken
as true, affirmatively negate subject matter jurisdiction over her claim against
Quincy. See Miranda, 133 S.W.3d at 227; see also Cerullo, 2025 WL 1712078, at
*5. An opportunity to replead to allege more facts in support of her claim will not
overcome Quincy’s immunity.
12 See also Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013) (dismissal occurs either through plaintiff’s amended pleading or trial court’s order granting employee’s motion and dismissing suit against him); Gutierrez v. Williams, No. 05-25-00289-CV, 2025 WL 2712513, at *4 (Tex. App.—Dallas Sep. 23, 2025, no pet.) (mem. op.) (“When Williams did not file amended pleadings dismissing [the employee] . . . , section 101.106(f) required the trial court to dismiss Williams’s suit, and it was error not to do so.”). 14 Conclusion
We thus reverse the trial court’s order denying Quincy’s motion to dismiss
and render judgment dismissing Branch’s claim against Quincy in all things.
Terry Adams Chief Justice
Panel consists of Chief Justice Adams and Justices Gunn and Johnson.