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Click here for the full text of this decision FACTS:Waxahachie Independent School District (WISD) employed Tim Johnson and Ed White as maintenance coordinators. Johnson and White filed a written grievance against certain members of the WISD Board of Trustees, complaining of harassment, stalking and micromanagement. The next day they were placed on administrative leave, and five days later their employment was terminated. Their administrative appeal was denied by the board. Thereafter, WISD employees Jerry McLemore and Charles Tims, acting at WISD Superintendent Parker’s direction, reported to the local police that Johnson and White had accessed the WISD computer network and obtained the Social Security numbers of all WISD employees. Johnson and White were arrested on the basis of the charges, but later were no-billed by separate grand juries. Johnson and White then filed suit against WISD for wrongful termination of their employment and against Parker, McLemore and Tims (defendant employees) for malicious prosecution. WISD filed a plea to the jurisdiction and argued that because Johnson and White had filed suit against both the school district and the defendant employees, they were barred from filing suit against WISD under the election of remedies statute of the Texas Tort Claims Act. The trial court denied WISD’s plea to the jurisdiction and WISD appealed. HOLDING:Affirmed. The substance of WISD’s plea to the jurisdiction involves Texas Civil Practice & Remedies Code 101.106, which states that the filing of a suit against any employee of a governmental unit forever bars any suit or recovery against the governmental unit involving the same subject matter. The court reasons that the Legislature amended 101.106 apparently to force a plaintiff to choose whether he would seek to impose tort liability on a governmental unit or on governmental employees acting as individuals outside their official capacity. The choice of one immediately and irrevocably bars the plaintiff’s claims against the other. The court notes that the effect of the statute is that a plaintiff is no longer able to include every potential tortfeasor in a suit, argue alternative theories of recovery based on the same conduct and allow a fact-finder to decide which party was the wrongdoer. Because the appellees filed suit against the defendant employees for malicious prosecution, WISD argues that appellees’ suit against it for unlawful termination of their employment should be dismissed under 101.106(b). The court finds that, construing 101.106 in the “plain and common meaning of the statute’s words,” the absence of a reference to “under this chapter” or to the capacity under which the employee is sued is intentional. Accordingly, the court agrees with WISD’s contention that under 101.106(b) whether the defendant employees were sued in their official or individual capacities is irrelevant. WISD further argues that the actions and occurrences between appellees, WISD and the defendant employees are so inextricably intertwined that they cannot be separated and that appellees’ claim against WISD is forever barred. The court finds that the facts giving rise to the different causes of action are sufficiently separated by time and place and do not arise out of the same transactions or occurrences so as to constitute different subject matters under 101.106(b). Therefore, the court holds that 101.106(b) does not apply to WISD as a means by which it should be dismissed from appellees’ suit. The court therefore concludes that the trial court did not err in denying WISD’s plea to the jurisdiction. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ. DISSENT:Gray, C.J. “[T]he appropriate result is to reverse the trial court’s order denying the plea to the jurisdiction and remand the case to the trial court for further proceedings consistent with our opinion. Because the majority does not, I respectfully dissent.”

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