Boyd Dwayne Quincy v. Crystal Dominick Branch, Individually, and A/N/F of T.W. and T.N.W., Minors

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.

15