Opinion by Justice Jewell, 14-24-00900-CV, February 03, 2026.
On appeal from the 55th District Court of Harris County
Synopsis
The Fourteenth Court of Appeals addressed whether a governmental employee may unilaterally move for dismissal under Section 101.106(e) of the Texas Tort Claims Act (TTCA) when the governmental unit employer is also a party but does not join the motion. The court held that the plain language of the statute makes the governmental unit’s motion a condition precedent to the employee’s dismissal; consequently, an employee lacks the individual standing to “self-dismiss” under this specific provision without the employer’s active participation.
Relevance to Family Law
While arising from a motor vehicle collision, this holding is a critical tactical consideration for family law practitioners involved in high-conflict litigation where state actors—such as Child Protective Services (CPS) caseworkers, court-appointed social workers, or law enforcement officers—are sued alongside their respective agencies. In suits alleging tortious interference with parental rights, negligence in investigations, or civil rights violations within the context of a SAPCR or divorce, plaintiffs often sue both the individual and the agency. This ruling prevents individual state-employed defendants from making an early exit via Rule 91a or summary judgment under the TTCA election-of-remedies provision if the agency, for strategic or administrative reasons, chooses not to move for the employee’s dismissal.
Case Summary
Fact Summary
The dispute began when Carolyn Michelle Flores filed suit against Michael Anthony Shelton and his employer, the City of Houston, following a rear-end collision. Flores alleged that Shelton, a City employee, was acting within the scope of his employment at the time of the accident. Because she sued both the governmental unit and the employee, the election-of-remedies framework of the TTCA was triggered. Shelton filed a Rule 91a motion to dismiss, asserting that because Flores sued both him and the City, she made an “irrevocable election” under Section 101.106(e), which should result in his immediate dismissal. Crucially, while the City of Houston filed its own motion to dismiss regarding the claims against it, it did not join Shelton’s motion nor did it move for Shelton’s dismissal under the TTCA election-of-remedies provision. Flores argued that without a motion from the City specifically requesting Shelton’s dismissal, the statutory requirements for his exit from the suit were not met.
Issues Decided
The primary issue was whether a trial court is required to dismiss a governmental employee under Texas Civil Practice and Remedies Code Section 101.106(e) when only the employee moves for such relief. The court also implicitly addressed the jurisdictional nature of this interlocutory appeal under Section 51.014(a)(5), ultimately affirming the trial court’s denial of the motion.
Rules Applied
The court centered its analysis on Texas Civil Practice and Remedies Code § 101.106(e), which provides: “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the motion of the governmental unit.” The court also applied Texas Rule of Civil Procedure 91a, which allows for the dismissal of causes of action that have no basis in law or fact. The court further looked to the Texas Supreme Court’s interpretation of the TTCA in Mission Consol. Indep. Sch. Dist. v. Garcia, emphasizing that the election-of-remedies provision was designed to force a plaintiff to decide at the outset whether a defendant acted within the scope of employment.
Application
In its de novo review, the court focused on the “plain and common meaning” of the statutory text. The court noted that Section 101.106(e) contains an explicit condition: the dismissal must occur “on the motion of the governmental unit.” In this instance, Shelton—the employee—was the sole movant under this provision. The City of Houston filed its own separate Rule 91a motion on different grounds and did not seek Shelton’s dismissal. The court reasoned that the legislature intentionally placed the power to trigger this dismissal in the hands of the governmental employer, not the employee. By failing to have the City join or file the motion, Shelton could not satisfy the statutory prerequisite for dismissal. The court aligned its decision with every other Texas appellate court that has scrutinized this “self-dismissal” attempt, reinforcing that the employee’s right to dismissal under subsection (e) is derivative of the employer’s action.
Holding
The court held that dismissal under Section 101.106(e) is mandatory only when the governmental unit employer specifically moves for the employee’s dismissal. Because the City of Houston did not file such a motion, the trial court did not err in denying Shelton’s Rule 91a motion.
The court further held that while Shelton cited the wrong subsection of the interlocutory appeal statute, the court would afford the notice a liberal reading and exercise jurisdiction because the motion was effectively based on an assertion of immunity by a governmental employee.
Practical Application
For family law litigators, this case serves as a shield against premature dismissals of individual defendants. When a state actor is involved in a family law dispute—perhaps a caseworker who exceeded their authority or a police officer who wrongfully interfered in a custody exchange—suing both the individual and the agency is a common strategy. If the individual employee moves for dismissal under the TTCA without the agency’s formal motion, the practitioner can successfully defeat the motion based on Shelton. This allows for continued discovery against the individual, which is often more fruitful than discovery against a large governmental entity.
Checklists
Challenging an Employee’s Motion to Dismiss
- Verify the Movant: Confirm whether the motion was filed by the individual employee, the governmental unit, or both.
- Analyze the Statutory Basis: Ensure the motion specifically cites Section 101.106(e). If the employee cites subsection (e) but the governmental unit has not moved, the motion is legally insufficient.
- Scrutinize Joinder: Check if the governmental unit formally joined the employee’s motion. Mere “collateral” motions by the agency on its own behalf do not satisfy the requirement.
- Scope of Employment: If the agency has not stipulated that the employee was in the scope of employment, use this as an additional argument to keep the employee in the suit to determine the capacity in which they acted.
Strategic Pleading for Plaintiffs
- Initial Joinder: Sue both the agency and the employee simultaneously if there is a good faith basis that the act was within the scope of employment but tortious.
- Monitor Agency Response: If the agency fails to move for the employee’s dismissal, prioritize depositions of the individual defendant to lock in testimony before the agency realizes its procedural oversight.
Citation
Michael Anthony Shelton v. Carolyn Michelle Flores, No. 14-24-00900-CV, 2026 WL ______ (Tex. App.—Houston [14th Dist.] Feb. 3, 2026, no pet. h.).
Full Opinion
The full opinion can be found here: Full Opinion Link
Family Law Crossover
In the context of Texas family law, this ruling can be weaponized during the “discovery phase” of a suit involving CPS or local law enforcement. Often, a governmental unit may be hesitant to move for an employee’s dismissal if it would require the agency to admit the employee was acting within the “scope of employment,” which might then expose the agency to vicarious liability and a waiver of immunity. By understanding that the employee cannot “self-dismiss” under Section 101.106(e), family law practitioners can exploit the tension between the agency (which wants to deny the employee was acting within scope) and the employee (who wants the agency to move for their dismissal). This procedural “purgatory” keeps the individual defendant in the case, potentially leading to more favorable settlement leverage or the uncovering of evidence that the agency would otherwise attempt to shield through an early dismissal.
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