Opinion

[COMMENT1]

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-05-293-CV

MARIA

THERESA NUNEZ, APPELLANTS

INDIVIDUALLY

AND ON BEHALF

OF

THE ESTATE OF IGNACIO

NUNEZ,

AND ELIZABETH REYTHER

AS

NEXT FRIEND OF JARED NUNEZ,

A MINOR

V.

CITY OF SANSOM PARK, TEXAS APPELLEE

------------

FROM

THE 348TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. Introduction

Appellants Maria Theresa

Nunez, individually and on behalf of the estate of Ignacio Nunez, and Elizabeth

Reyther, as next friend of Jared Nunez, a minor appeal from the trial court = s judgment granting a plea to the jurisdiction in favor of Appellee

City of Sansom Park, Texas (the A City @ ). In a single issue, Appellants complain that

the trial court erred by granting the City = s plea because they alleged facts establishing a waiver of the City = s governmental immunity from suit under the Texas Tort Claims Act ( A TTCA @ ). [1] Because we hold that the City = s immunity from suit has not been waived, we affirm the trial court = s judgment.

II. Factual and Procedural Background

Appellants alleged in their second

amended petition that the Sansom Park Police Department detained Nunez = s son, Ignacio, on July 19, 2004 for public intoxication. Ignacio was taken to the Sansom Park City

Jail for booking at 9:00 p.m., and officers placed Ignacio in a jail cell at

approximately 9:30 p.m. The officers

failed to remove Ignacio = s

shoestrings from him despite a written policy requiring the arresting or

booking officer to remove all items of personal property from the arrested

person, including shoestrings. At 6:00

a.m. the following morning, officers discovered that Ignacio had hanged himself

using his shoestrings, which were attached to the top of a bunk bed in the jail

cell.

Appellants sued the Sansom

Park Police Department [2]

and the City of Sansom Park, Texas, alleging that Ignacio = s death was caused by a condition or use of tangible personal or real

property and that the City was liable pursuant to section 101.021(2) of the

TTCA. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2). Specifically, they

alleged that the City was negligent by failing to follow written booking

procedures, failing to remove Ignacio = s shoestrings, failing to reasonably monitor Ignacio after placing him

in the cell, placing Ignacio in a jail cell that was not easily monitored, and

using the jail cell and bunk bed in violation of written policy. The City filed a plea to the jurisdiction,

arguing that it was immune from suit because Appellants = petition failed to state a claim within the limited waiver of the

TTCA. The trial court subsequently

granted the plea, and this appeal followed.

III. Waiver of Governmental Immunity

In their sole issue,

Appellants argue that the trial court erred by granting the City = s plea to the jurisdiction because A it is not readily apparent from the pleadings . . . that [the City = s] claims are barred as a matter of law by . . . sovereign immunity. @ They argue that the City = s negligent A use @ of the shoestrings in conjunction with the bunk bed and jail cell

room amounts to a waiver of immunity pursuant to section 101.021(2) of the

TTCA. The City responds that none of

Appellants = allegations

state a claim within the TTCA = s limited waiver of immunity.

A. Plea to the Jurisdiction

A plea to the jurisdiction

challenges the trial court = s authority to determine the subject matter of the action. Tex. Dep = t of Transp. v. Jones , 8 S.W.3d

636, 638 (Tex. 1999). Whether the trial

court had subject matter jurisdiction is a question of law that we review de

novo. Tex. Natural Res. Conservation

Comm = n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).

The plaintiff has the burden of alleging facts that affirmatively

establish the trial court = s subject

matter jurisdiction. Tex. Ass = n of Bus. v. Tex. Air Control Bd. , 852

S.W.2d 440, 446 (Tex. 1993). In

determining whether the plaintiff has met this burden, we look to the

allegations in the pleadings, accept them as true, and construe them in favor

of the pleader. Id .; Tex. Dep = t of MHMR v. Lee , 38 S.W.3d 862, 865

(Tex. App. C Fort Worth

2001, pet. denied). We must also consider

evidence relevant to jurisdiction when it is necessary to resolve the

jurisdictional issue raised. Bland

ISD v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). Neither party presented any evidence to the

trial court. We therefore look solely to

Appellants = pleadings

to determine the jurisdictional question.

B. Immunity and the TTCA

Sovereign immunity from suit

defeats a trial court = s subject

matter jurisdiction unless the State expressly consents to the suit. Jones , 8 S.W.3d at 638 . Governmental immunity operates like sovereign

immunity to afford similar protection to subdivisions of the State, including

counties, cities, and school districts. Harris

County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004); see Wichita Falls

State Hosp. v. Taylor , 106 S.W.3d 692, 694, n.3 (Tex. 2003) (recognizing

that courts often use the terms sovereign immunity and governmental immunity

interchangeably). The TTCA provides a

limited waiver of immunity, allowing suits to be brought against government

units in certain, narrowly defined circumstances. Tex. Dep = t of Criminal Justice v. Miller , 51 S.W.3d

583, 587 (Tex. 2001); see also Dallas County MHMR v. Bossley , 968 S.W.2d

339, 341 (Tex.) (recognizing that the Legislature intended the waiver in the

TTCA to be limited), cert. denied , 525 U.S. 1017 (1998). Mere reference to the TTCA does not establish

consent to be sued. Miller , 51

S.W.3d at 587 . The plaintiff must

affirmatively demonstrate the trial court = s jurisdiction by alleging a valid waiver of immunity. Id .

The TTCA provides that a

governmental unit is liable for

(1) property

damage, personal injury, and death proximately caused by the wrongful act or

omission or the 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 personal or real property if the governmental unit

would, were it a private person, be liable to the claimant according to Texas

law.

Tex. Civ. Prac. &

Rem. Code Ann. ' 101.021 . Only section 101.021(2) is relevant to this

appeal.

A Use @ means A to put or

bring into action or service; to employ for or apply to a given purpose. @ Miller , 51 S.W.3d at

588 ; Archibeque v. N. Tex. State Hosp.-Wichita , 115 S.W.3d 154 , 158

(Tex. App. C Fort Worth

2003, no pet.). A governmental unit does

not A use @ personal

property merely by allowing someone else to use it and nothing more. San Antonio State Hosp. v. Cowan , 128

S.W.3d 244, 246 (Tex. 2004). To state a

claim for which immunity is waived, a plaintiff must allege that usage of the

property itself actually caused the injury.

Miller , 51 S.W.3d at 588 ; Renteria v. Housing Auth. of the

City of El Paso , 96 S.W.3d 454, 458 (Tex. App. C El Paso 2002, pet. denied). The

use must have proximately caused the injury or death; mere involvement of the

property is insufficient. Bossley ,

968 S.W.2d at 343 ; Archibeque , 115 S.W.3d at 159. A 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 . A Property does not cause injury if it does no more than furnish the

condition that makes the injury possible. @ Id .

C. Analysis C Condition or Use of Tangible Personal or Real Property

Appellants = allegations involve four items of tangible property: the shoestrings, the bunk bed, the jail cell,

and video surveillance equipment. [3]

Appellants make no allegation regarding the condition of the items of property,

only their use.

1. Shoestrings and Bunk Bed

The City did not A use @ the

shoestrings and bunk bed as contemplated by the TTCA. Appellants = pleadings show that Ignacio arrived at the jail with his shoestrings,

and the officers failed to remove them from him. The bunk bed was located in the jail

cell. The City did not A use @ the bunk

bed or the shoestrings by simply allowing Ignacio to use those items of

tangible property and nothing more. A If all > use = meant were > to make

available, = the

statutory restriction would have very little force. @ Cowan , 128 S.W.3d at

246 . Moreover, the presence of the

shoestrings and bunk bed in Ignacio = s cell did no more than furnish the condition that made Ignacio = s death possible. See

Bossley , 968 S.W.2d at 343 .

Appellants = allegations

that the City used the shoestrings and bunk bed are too attenuated from his

death to be said to have caused it. [4]

Appellants rely in part on Robinson

v. Central Texas MHMR Center , 780 S.W.2d 169 (Tex. 1989), and Lowe v.

Texas Tech University , 540 S.W.2d 297 (1976), as support for their argument

that the City has waived its immunity.

In Robinson , immunity was waived for a claim that a mentally

challenged patient was allowed to swim without a life preserver. Robinson , 780 S.W.2d at 171 . In Lowe , immunity was waived for a

football player = s claim that

a coach required him to play without a knee brace. Lowe , 540 S.W.2d at 300 . The supreme court has stated that the

precedential value of Robinson and Lowe is A limited to claims in which a plaintiff alleges that a state actor has

provided property that lacks an integral safety component and that the lack of

this integral safety component led to the plaintiff = s injuries. @ Cowan , 128 S.W.3d at 247 ; Kerrville

State Hosp. v. Clark , 923 S.W.2d 582, 585 (Tex. 1996).

Appellants argue that A it would seem obvious that immunity is similarly waived where a state

actor uses property (normally safe property by itself) with a harmful component

(as opposed to withholding a safety component) and the addition of the harmful

[component] leads to the plaintiff = s injury. @ But we are not inclined to expand upon the

supreme court = s express

limitation of Robinson and Lowe .

Consequently, because Appellants = claims do not fall within the scope of those cases, they are

inapposite. Accordingly, Appellants = allegations about the shoestrings and bunk bed are insufficient to

state a claim within section 101.021(2) = s waiver of immunity.

2. Jail Cell

Appellants argue that the

City A used @ the jail

cell, which is a room apparently within the Sansom Park City Jail. They cite Vela v. City of McAllen , 894

S.W.2d 836 (Tex. App. C Corpus

Christi 1995, no writ), City of Waco v. Hester , 805 S.W.2d 807 (Tex. App. C Waco 1990, writ denied), and Martinez v. City of Brownsville ,

No. 13-00-00425-CV, 2001 WL 1002399 (Tex. App. C Corpus Christi Aug. 31, 2001, pet. denied) (not designated for publication),

as support for their argument that the City A used @ the jail

cell C a room. The court in Vela held

that the A use @ of a booking room and the placement of a stool therein was equivalent

to the A use @ of personal

property as contemplated by section 102.021(2). Vela , 894 S.W.2d at 840 . The Hester court determined that a

room in which the plaintiff was assaulted and a television set that the guards

watched were A used @ within the meaning of the TTCA.

Hester , 805 S.W.2d at 815 .

Martinez relies on Vela and Hester for the

proposition that government employees can A use @ a room for

purposes of the TTCA. Martinez ,

2001 WL 1002399 , at *7.

This court declined to follow

both Vela and Hester in Tarrant County Hospital District v.

Henry , 52 S.W.3d 434 , 442 n.23, 444 (Tex. App. C Fort Worth 2001, no pet.).

Other courts have done the same .

See Scott v. Prairie View A & M Univ. , 7 S.W.3d 717, 720 (Tex.

App. C Houston [1st Dist.] 1999, pet. denied) (disagreeing in part with Hester = s reasoning and holding that

the room where the plaintiff was attacked was not defective in some capacity

and was A too attenuated from the actual injury to be considered the proximate

cause of Hester = s injury @ ); Laman v. Big Spring State

Hosp. , 970 S.W.2d 670, 672 (Tex. App. C Eastland 1998, pet. denied) ( A To the extent that Vela and Hester can be understood to

state that a room is personalty or that a cause of action will lie for the

negligent use of real property, we respectfully decline to follow our sister

courts. The duty of a real property

owner with regard to others is defined as a premises defect. @ ). [5] We likewise decline to follow Hester , Vela ,

and Martinez .

Because Appellants = claims involve a room, real property C not personal property C is at issue. See, e.g., San

Antonio Area Found. v. Lang , 35 S.W.3d 636, 640 (Tex. 2000) (defining real

property as A land, and

generally whatever is erected or growing upon or affixed to land @ ). Neither a cause of action

for negligent use of real property nor a cause of action involving a condition

of real property exists separate and apart from a cause of action for a

premises defect. Laman , 970

S.W.2d at 671-72 ; see also Renteria , 96 S.W.3d at 458 ; Scott , 7

S.W.3d at 720 . The term A premises @ has been

defined as a building or part thereof with its grounds and appurtenances. Laman , 970 S.W.2d at 672 . A Defect @ has been

defined as a shortcoming, an imperfection, or the want of something necessary

for completeness. Id .; Billstrom

v. Mem = l Med. Ctr. , 598 S.W.2d 642, 646 (Tex. Civ. App. C Corpus Christi 1980, no writ).

Appellants have not stated a

premises defect claim because they have not alleged a defect, shortcoming, or

imperfection of the jail cell. To the

extent that Appellants impliedly argue that the A use @ of the jail

cell is the equivalent to the A use @ of personal

property, the jail cell did not proximately cause Ignacio = s death, it was merely involved.

See Bossley , 968 S.W.2d at 343 ; Archibeque , 115 S.W.3d at

159.

Appellants = argument that immunity is waived when considering all of the tangible

property in conjunction is also unpersuasive and does not result in a different

outcome. Like in Archibeque , the

true substance of Appellants = complaint appears to be that Ignacio = s death was caused not by the shoestrings, bunk bed, or jail cell, but

by the City = s failure to

monitor Ignacio. See Archibeque ,

115 S.W.3d at 160. This, however, does

not state a claim within the TTCA = s limited waiver of immunity. Id . Accordingly, looking to Appellants = allegations in the pleadings, accepting them as true, and construing

them in their favor, we hold that Appellants failed to invoke the trial court = s subject matter jurisdiction by alleging facts establishing a waiver

of governmental immunity under the TTCA.

We overrule Appellants = sole issue.

IV. Conclusion

Having overruled Appellants = only issue, we affirm the trial court = s judgment granting the City = s plea to the jurisdiction.

BOB MCCOY

JUSTICE

PANEL B: LIVINGSTON, HOLMAN, and MCCOY, JJ.

LIVINGSTON,

J. concurs with opinion.

DELIVERED:

June 29, 2006

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-05-293-CV

MARIA THERESA NUNEZ, INDIVIDUALLY APPELLANTS

AND

ON BEHALF OF THE ESTATE OF

IGNACIO

NUNEZ, AND ELIZABETH REYTHER

AS

NEXT FRIEND OF JARED NUNEZ, A MINOR

V.

CITY OF SANSOM PARK, TEXAS APPELLEE

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FROM

THE 348TH DISTRICT COURT OF TARRANT COUNTY

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CONCURRING

OPINION

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I respectfully concur to the

majority opinion in this case to discuss the A use @ prong of

the Texas Tort Claims Act. The 2004

Texas Supreme Court case of San Antonio State Hospital. v. Cowan clearly

held that the triggering governmental A use @ of personal

property had to be just that; A section 101.021(2) waives immunity for a use of personal property only

when the governmental unit is itself the user. @ 128 S.W.3d 244, 245-46 (Tex.

2004); see also Tex. Civ. Prac.

& Rem. Code Ann. ' 101.021(2) (Vernon 2005). Thus

here, because Ignacio was the one who actually used the shoestring, bunk bed,

and jail cell, as opposed to the governmental unit, immunity has not been

waived for purposes of section 101.021(2).

See Cowan , 128 S.W.3d at 246 .

This description of A use @ has also

been followed by the supreme court in a recent case, Texas A & M

University v. Bishop. 156 S.W.3d

580, 583-84 (Tex. 2005).

In Bishop , the faculty

advisor provided a real knife to a student actor for use in a drama club

production. Id. at 582 . The student actor, using the real knife,

missed the stab pad and actually stabbed one of his co-actors. Id .

The injured actor sued Texas A & M for A deciding to use a real knife and in failing to provide an adequate

stab pad @ and for violating the university = s prohibition of deadly weapons on campus. Id .

The supreme court held that simply furnishing the knife to the actor was

insufficient to establish a A use @ of personal

property by the governmental unit. Id .

at 583. As in Cowan , merely

providing personal property for use by someone else is insufficient to

establish the statutory waiver of immunity.

See id .; Cowan, 128 S.W.3d at 246 .

A similar approach has been

used by the Dallas Court of Appeals in Texas Department of Criminal Justice

v. Hawkins . 169 S.W.3d 529 (Tex.

App. C Dallas 2005, no pet.). In that

case, Irving Police Officer Aubrey Hawkins was killed when escapees from the

Texas Department of Criminal Justice (TDCJ) stole weapons from TDCJ during

their escape from the Connally Unit in Huntsville, Texas in 2000. Id. at 531 . Hawkins = s survivors asserted claims against TDCJ for negligence. Id. at 531-32 . The Dallas Court of Appeals reversed the

trial court = s denial of

TDCJ = s plea to the jurisdiction. Id.

at 534-35 . The court agreed that TDCJ

did not A use @ the weapons

within the meaning of the tort claims act = s use waiver of governmental immunity.

Id . at 533. Citing both Cowan

and Bishop , the Dallas court determined that the escapees = use of the weapons did not constitute negligent misuse of the weapons

by TDCJ and that TDCJ had merely negligently provided access to the property

which is insufficient to constitute A use @ under the

tort claims act. Id. at 533.

I believe the decision in our

case turns simply upon the lack of A use @ by a

governmental unit. I do not believe that

we reach the issue of causation, as the majority has, until we first review the

governmental unit = s alleged A use. @ If we agree that the governmental unit A used @ the

property, only then do we look to its A use @ in terms of

causation. For this reason, I

respectfully concur.

TERRIE LIVINGSTON

JUSTICE

DELIVERED:

June 29, 2006

[1] See Tex. Civ.

Prac. & Rem. Code Ann. ' ' 101 C 109 (Vernon 2005).

[2] Appellants subsequently dismissed

the police department as a party.

[3] Appellants make no argument

throughout their entire brief regarding the video surveillance equipment. We therefore do not address it in our

analysis. See Tex. R. App. P. 47.1.

[4] Appellants alleged in their

pleadings that the officers = failure to remove Ignacio = s shoestrings constituted a

negligent implementation of policy. They

do not argue this on appeal. See

Guadalupe-Blanco River Auth. v. Pitonyak , 84 S.W.3d 326, 342 (Tex. App. C Corpus Christi 2002, no pet.)

(reasoning that an assertion of the negligent implementation theory of

liability arises only after a plaintiff has established a waiver of immunity

under section 101.021 of the TTCA).

Appellants also alleged

that A [Ignacio] was placed in a cell that

had no/limited video surveillance available.

Other cells in the jail had surveillance equipment readily available. @

They make no argument on appeal regarding the absence of video

surveillance equipment. See Miller ,

51 S.W.3d at 587 (reasoning that the nonuse of property cannot support a claim

under the TTCA).

[5] In Bossley , the supreme

court found it unnecessary to address an amicus curiae brief filed by the

Attorney General arguing that A negligence in the use or condition of real property does

not state a cause of action under the [TTCA], unless it is a premise defect

claim under section 101.022(1). @ Bossley , 968

S.W.2d at 341 .

[COMMENT1]

Majority by Justice McCoy Concurrence by Justice Livingston