RAMOS v. CITY OF LAREDO (2018)

CONCURRING OPINION

I write separately to point out my concern about a potential unintended consequence of section 101.106(e) of the Texas Civil Practice & Remedies Code (“the Code”). The take-nothing judgment entered in the underlying cause is the “untenable” result this court forecasted could occur in Franka v. Velasquez, 216 S.W.3d 409, 413 (Tex. App.—San Antonio 2006), rev'd, 332 S.W.3d 367 (Tex. 2011). A governmental entity should not be permitted to demand that its employee be dismissed from a lawsuit under section 101.106(e) of the Code and then, after the employee is dismissed from the lawsuit, attempt to assert immunity or otherwise avoid liability by arguing the employee was not within the course and scope of his employment. Fortunately, the City's judicial admission precludes it from capitalizing on that approach in this case. This case does, however, demonstrate the need for the Legislature to consider amending the statute to prevent what must be an unintended consequence.

Marialyn Barnard, Justice

Concurring Opinion by: Marialyn Barnard, Justice