§ 101.106.Election of Remedies

The election of remedies provision, and it forecloses more claims than any other section in the chapter.

Filing suit against a governmental unit constitutes an irrevocable election and immediately and forever bars any suit or recovery against any individual employee of that unit regarding the same subject matter.

Filing against any employee is equally irrevocable and forever bars any suit or recovery against the governmental unit regarding the same subject matter unless the governmental unit consents.

"Immediately and forever" is not rhetorical. The bar attaches on filing, before any ruling, and non-suiting does not undo it. A claimant who sues the wrong party has lost the other.

Settlement and judgment carry the same effect. Settling a claim under the chapter bars any suit against an employee of the same unit; a judgment against an employee bars any suit against the unit.

Subsection (e) is the routine motion. Where a suit is filed against both a governmental unit and its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

Subsection (f) is the trap for a claimant who sues only the employee. If the suit is based on conduct within the general scope of employment and could have been brought under this chapter against the governmental unit, it is considered to be against the employee in the employee's official capacity only — and on the employee's motion shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit on or before the 30th day after the motion is filed.

Thirty days, and the amendment must both dismiss the employee and name the unit. A claimant who misses it loses the case against everyone.