Opinion
No. 01-06-00364-CV
Issued October 4, 2007.
On Appeal from the 23rd District Court Brazoria County, Texas, Trial Court Cause No. 95-3023.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
The Texas Department of Criminal Justice ("TDCJ") brings this interlocutory appeal challenging the trial court's denial of its plea to the jurisdiction and motion to dismiss for lack of subject matter jurisdiction. On appeal, TDCJ contends that the court lacks subject matter jurisdiction over the suit because the plaintiff's pleadings do not affirmatively allege facts that support a waiver of governmental immunity. We reverse.
Background
This suit seeks recovery of damages resulting from the death of Raymond Lockett, which occurred while he was in TDCJ custody. In June 1993, during a basketball game with other inmates, Lockett collapsed on the court. He did not receive medical attention until approximately half an hour later. During that time, the TDCJ employee who was present did assist Lockett. When medical personnel arrived, Lockett received CPR. No medical equipment, however, was available to assist in caring for Lockett. The CPR did not resuscitate Lockett, and he died. The cause of death was later identified as a heart attack.
In January 1995, Lockett's estate and heirs filed suit, alleging that the TDCJ's negligence caused Lockett's death. The original petition, however, named Lockett as the sole plaintiff. After the TDCJ moved for dismissal based on lack of subject matter jurisdiction, the estate amended the petition on June 1, 1995, replacing Lockett as plaintiff with the Estate of Raymond Lockett (the "Estate").
Other than amending its petition, the Estate did not respond to the TDCJ's plea to the jurisdiction and motion to dismiss. The trial court denied the plea, and this appeal followed.
Discussion
Standard of review
Sovereign immunity and standing are both components of subject matter jurisdiction, which is a legal issue subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see, e.g., City of Garland v. Rivera, 146 S.W.3d 334, 337 (Tex.App.-Dallas 2004, no pet.); City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). "[I]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings in the plaintiff's favor and look to the pleader's intent. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Sovereign immunity
In Texas, under the doctrine of sovereign immunity, a governmental agency is not liable for the torts of its officers or agents unless a constitutional or statutory provision expressly waives immunity and consents to the suit. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Sovereign immunity defeats a trial court's subject matter jurisdiction unless this consent exists. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental immunity extends to subdivisions of the State, including counties, cities, and school districts. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Thus, "[i]n a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). The Estate thus bore the burden to allege facts affirmatively showing that the trial court had jurisdiction over its claims. Tex. Ass'n of Bus., 852 S.W.2d at 446.
The Estate has invoked the Texas Tort Claims Act as the basis for its suit. In reviewing whether the Estate met its burden to show subject matter jurisdiction, we look to the Act's terms to determine the scope of its waiver, and then determine whether the particular facts alleged in this case come within its scope. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).
The Tort Claims Act permits suits against governmental entities in certain specified circumstances, limiting governmental unit liability to:
(1) property damage, personal injury, and death proximately caused by the wrongful act or negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible real or personal property if the governmental unit would, if it were a private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. REM. CODE ANN. § 101.021 (Vernon 1997). The Estate relies on subsection 101.021(2) for its suit. Under this provision, "the plaintiff must allege that (1) property was used or misused by a government employee and (2) the use proximately caused personal injury or death." Archibeque v. N. Tex. State Hosp., 115 S.W.3d 154, 158 (Tex.App.-Fort Worth 2003, no pet.). "Use" means to put or bring into action or service or employ for or apply to a given purpose. Miller, 51 S.W.3d at 588; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996).
The personal injury or death also must be "caused by" the condition or use of the property. TEX. CIV. PRAC. REM. CODE ANN. § 101.021(2). Accordingly, the plaintiff must allege, among other things, that the property's use proximately caused the personal injury or death. Bossley, 968 S.W.2d at 342-43; Archibeque, 115 S.W.3d at 159. "Requiring only that a condition or use of property be involved would conflict with the Act's basic purpose of waiving immunity only to a limited degree." Bossley, 968 S.W.2d at 343.
In its pleading, the Estate asserts that the TDCJ negligently failed to: (1) provide proper medical treatment; (2) have medical personnel readily available for medical emergencies; (3) properly equip medical personnel; and (4) properly supervise prisoners. Alternatively, the Estate claims that TDCJ failed to use proper medical techniques (i.e., timely use of CPR) and proper medical devices to revive Lockett.
The Estate's first three allegations do not allege that Lockett's death was caused by a TDCJ employee's use or misuse of any tangible property. Rather, under the Estate's negligence theory, the failure to use equipment allegedly caused Lockett's injury. The Texas Supreme Court expressly has held that allegations of non-use cannot support a claim that comes within the limited waiver defined in the Tort Claims Act. Miller, 51 S.W.3d at 587-88 (holding that non-use of property does not waive sovereign immunity); Kerrville State Hosp., 923 S.W.2d at 584 (same); Fryman v. Wilbarger Gen. Hosp., 207 S.W.3d 440, 442 (Tex.App.-Amarillo 2006, no pet.) (complaint that hospital failed to undertake adequate security and safety precautions, monitor security cameras, or provide security personnel sufficient to thwart attacks committed by third parties on hospital grounds fell short of satisfying elements of section 101.021(2)); City of Sugarland v. Ballard, 174 S.W.3d 259, 265 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding that claim based on police officers' failure to provide adequate care, well-being and safety of plaintiff while he was in custody did not fall within express language of Act's waiver provisions); Bonham v. Tex. Dep't of Crim. Justice, 101 S.W.3d 153, 160 (Tex.App.-Austin 2003, no pet.) (holding that allegations concerning lack of surveillance equipment in prison restroom where sexual assault occurred involved non-use of property and, therefore, was not actionable under section 101.021(2)).
The Estate's negligent supervision claims likewise fail to come within the Act's narrowly drawn waiver provisions. See Tex. A M Univ. v. Bishop, 156 S.W.3d 580, 581 (Tex. 2005) (holding that faculty advisors' alleged failure to properly supervise props does not constitute use of tangible personal property within Act's meaning; information in form of instructions is not tangible personal property and thus does not give rise to claim under Act). Our conclusion that the trial court has no subject matter jurisdiction for this reason is dispositive, and, thus, we do not reach the TDCJ's other issue.
Conclusion
After looking solely to the Estate's allegations, taking them as true, and construing them in favor of the Estate, we conclude that its amended petition does not present a claim in which immunity from liability, and therefore immunity from suit, is waived by the Texas Tort Claims Act. Accordingly, we reverse the order denying the TDCJ's plea to the jurisdiction and dismiss the Estate's claims against TDCJ for want of jurisdiction.
All pending motions are dismissed as moot.