Texas Department of Criminal Justice v. Raymond Lockett

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Issued October 4, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00364-CV

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant

V.

RAYMOND LOCKETT, Appellee

On Appeal from the 23rd District Court

Brazoria County , Texas

Trial Court Cause No. 95-3023

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.

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.