Victor Ramos v. City of Laredo ( 2018 )

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
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