We received two negligence car wreck cases. Both name the county as a party but do not bring in the employee involved as a party. The cases only mention the employee in the body of the pleadings. Is bringing in the employee required as a necessary party?

Indeed, if the county is named as a party under the Tort Claims Act, the employee is entitled to dismissal upon motion of the county under the revised sec. 101.106. On the other hand, if the county is wanting some sort of indemnification or contribution, I suppose you could cross-claim against him/her, but I haven't really thought about how section 101.106 would bear upon such a claim.

I agree with Scott. I would add that if you are inclined to bring the employee in, you need to be careful. Pleading the employee in by way of a cross-claim could constitute a waiver of your immunity, since you would now be affirmatively seeking relief.

I was thinking maybe if the employee was not made a necessary party that the court was somehow devoid of jursidiction. I was thinking of it as a jurisdictional issue to get away from liability. Anybody tried that or is it too out there?

In Vondy v. Comm'rs Ct. of Uvalde County, 620 S.W.2d 104, 106-07 (Tex. 1981), the Supreme Court indicated that a party is not jurisdictionally indispensable under Tex. R. Civ. P. 39 unless the judgment in the action would adversely affect the interests of the absent party, who would have no opportunity to assert its rights in the trial court absent joinder. Since a judgment in a Tort Claims Act suit for or against a governmental entity is a bar to suit against individual employees under the facts giving rise to the suit under CPRC sec. 101.106(a), and employees are entitled to be dismissed from the suit when the governmental entity is a proper party under subsections (e) or (f), it seems a bit of a stretch to say that the employee's interests stand to be adversely impacted if the employee isn't joined in the suit. If the county wins, the employee can't be sued. If the county loses, the employee can't be sued. Since the county was sued, the employee is entitled to be dismissed even if he/she is joined (though I grant you that the county is contemplated as the one who is supposed to move for dismissal). Consequently, in my uneducated view, the employee's interests are insulated from adverse effect by section 101.106. If you cross-claim against the employee, I suppose that raises a different issue, but it also implicates the waiver-by-seeking-affirmative-relief doctrine of Reata Constr. Co. that John correctly noted.