Victor Ramos v. City of Laredo

Fourth Court of Appeals

San Antonio, Texas

CONCURRING OPINION

No. 04-17-00099-CV

Victor RAMOS,

Appellant v.

CITY OF LAREDO,

Appellee

From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2015CVT003985 D2

Honorable Susan D. Reed, Judge Presiding Opinion by: Rebeca C. Martinez, Justice

Concurring Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: March 28, 2018

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 Concurring Opinion 04-17-00099-CV 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