Harris Cnty. v. Annab

• Decision Date: 11 May 2018
• Docket Number: No. 17–0329,17–0329
• Citation: 547 S.W.3d 609
• Parties: HARRIS COUNTY, Texas, Petitioner, v. Lori ANNAB, Respondent
• Court: Texas Supreme Court

547 S.W.3d 609

HARRIS COUNTY, Texas, Petitioner,

v.Lori ANNAB, Respondent

No. 17–0329

Supreme Court of Texas.

Argued March 1, 2018

OPINION DELIVERED: May 11, 2018

Seth B. Hopkins, B. Jorey Herrscher, Bruce S. Powers, Vincent R. Ryan Jr., Harris County Attorney's Office, Houston TX, for Petitioner.

Steven E. Couch, Kelly, Sutter & Kendrick, P.C., Houston TX, for Respondent.

Michael W. Blaise, Scott Benjamin Novak, Lorance & Thompson, P.C., Houston TX, for Carole Busick, PhD.

Kenneth Caplan, pro se.

Gary Anthony Merritt, Katherine Wells Howard, Texas Association of Counties, Austin TX, for Amicus Curiae Texas Association of Counties.

Ramon G. Viada III, Viada & Strayer, The Woodlands TX, for Amicus Curiae Texas Municipal League and Texas City Attorneys Association.

Scott A. Keller, Office of the Attorney General, Solicitor General, Austin TX, for Amicus Curiae The State of Texas.

Justice Blacklock delivered the opinion of the Court.

On November 14, 2011, Kenneth Caplan shot Lori Annab in a fit of road rage. Caplan was a Harris County deputy constable, but he was off duty when he committed this vicious crime. He fired his personal firearm from his personal vehicle, striking and injuring Annab. Caplan is now in prison serving a twenty-year sentence. These facts are undisputed.

Although Caplan was off duty and used his personal firearm in the assault, Annab sued Harris County, Caplan's employer. Invoking the Texas Tort Claims Act, Annab attempted to overcome Harris County's governmental immunity by claiming that Harris County used tangible personal property when Caplan shot Annab. The trial court granted the county's plea to the jurisdiction and dismissed the case. The court of appeals concluded that Annab had not established a waiver of governmental immunity but remanded the case to allow Annab to replead and conduct more discovery. We agree with the court of appeals that Annab has not established a waiver of governmental immunity because her allegations, taken as true, do not demonstrate that Harris County's use of tangible personal property caused her injuries. We disagree, however, with the court of appeals' decision to remand the case. Despite multiple opportunities to do so, Annab has identified no viable factual or legal theory under which she could overcome the county's immunity on remand, and we can conceive of none. Remand was therefore improper. We affirm the judgment of the court of appeals in part, reverse in part, and render judgment for Harris County.

I. Background

Annab sued Harris County in October 2015. Attempting to trigger the Tort Claims Act's limited waiver of governmental immunity, she alleged that Harris County's use of tangible personal property caused the injuries she suffered when Caplan shot her. The alleged use of tangible personal property was the county's decision to hire Caplan and "repeatedly approv[e]/authoriz[e] and qualify[ ] [Caplan] to have, possess, and use the Glock gun as a firearm." The county responded with a plea to the jurisdiction. The county made three arguments: (1) Annab's claims were excluded from the Tort Claims Act's immunity waiver because they arose from Caplan's intentional assault, (2) the use or misuse of information was not the "use of tangible personal property" under the Tort Claims Act, and (3) Caplan did not act within the scope of his employment, so "[n]o county property was used." The trial court permitted additional discovery into these issues prior to ruling on the plea to the jurisdiction. Annab deposed the county's representative, Deputy Chief Armando Tello, before the court granted the county's plea and dismissed the case.

Annab filed an interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The court of appeals found that Annab's allegations regarding the county's "use" of the firearm failed to establish a waiver of the county's immunity. Annab v. Harris Cty. , 524 S.W.3d 793, 803–05 (Tex. App.—Houston [14th Dist.] 2017, pet. granted). Further, the court of appeals found that any alleged use was not a proximate cause of Annab's injuries. Id. But the court of appeals remanded the case to the trial court to allow Annab to replead and conduct more discovery. Id. One justice dissented. The dissent argued that Annab's claims arose from an intentional tort and were therefore excluded from the Tort Claims Act, regardless of whether she sufficiently alleged the county's use of tangible personal property. Id. at 805–08 (Donovan, J., dissenting).

II. Analysis

Sovereign immunity and governmental immunity are related common law doctrines protecting the government from suit. Travis Cent. Appraisal Dist. v. Norman , 342 S.W.3d 54, 57–58 (Tex. 2011). "Sovereign immunity protects the state and its various divisions, such as agencies and boards, from suit and liability, whereas governmental immunity provides similar protection to the political subdivisions of the state, such as counties, cities, and school districts." Id. ; see also Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003). An assertion of governmental immunity "implicates courts' subject-matter jurisdiction." Rusk State Hosp. v. Black , 392 S.W.3d 88, 91 (Tex. 2012). Thus immunity "is properly asserted in a plea to the jurisdiction." Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004).

Subject matter jurisdiction is a question of law that we review de novo. Id. at 226. When considering whether the pleadings allege jurisdiction, we "require[ ] the pleader to allege facts that affirmatively demonstrate the court's jurisdiction." Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). "When reviewing a trial court order dismissing a cause for want of jurisdiction, Texas appellate courts ‘construe the pleadings in favor of the plaintiff and look to the pleader's intent.’ " Id. (quoting Huston v. FDIC , 663 S.W.2d 126, 129 (Tex. App.—Eastland 1983, writ ref'd n.r.e.) ).

A governmental unit such as Harris County may be sued if the Legislature has waived immunity in "clear and unambiguous language." TEX. GOV'T CODE § 311.034 ; Oncor Elec. Delivery Co. v. Dall. Area Rapid Transit , 369 S.W.3d 845, 849 (Tex. 2012) ("[A] waiver of governmental immunity must be clear and unambiguous."). The Tort Claims Act waives immunity for certain tort claims against governmental units, including claims for "personal injury ... caused by a condition or use of tangible personal ... 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 § 101.021(2) ; see also id. § 101.025(a) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."). Annab does not contend that her injuries were caused by a "condition" of tangible personal property. Thus, to invoke section 101.021(2)'s waiver of immunity, Annab must allege that the county's "use of tangible personal property" caused her injuries. See Texas Ass'n of Bus. , 852 S.W.2d at 446 (emphasis added).

"[S]ince 1973 we have consistently defined ‘use’ to mean ‘to put or bring into action or service; to employ for or apply to a given purpose.’ A governmental unit does not ‘use’ personal property merely by allowing someone else to use it and nothing more. If all ‘use’ meant were ‘to make available,’ the statutory restriction would have very little force." San Antonio State Hosp. v. Cowan , 128 S.W.3d 244, 246 (Tex. 2004) ; see also Rusk , 392 S.W.3d at 98 (holding that "use" does not include "providing, furnishing, or allowing access to tangible property").

Annab alleges that the county used Caplan's firearm by authorizing Caplan to use or possess the firearm. This allegation fails as a matter of law to trigger the Tort Claims Act's immunity waiver. Annab's primary allegation of "use" stems from the county's alleged "authorization" or "approval" of Caplan's use of his firearm. Stated another way, Annab alleges the county "made available" the firearm to Caplan , which he then used to cause her injuries. The allegation that the county made the firearm available to Caplan is at odds with the undisputed facts, as explained below. But even accepting the allegation at face value, Annab has not alleged "use" of the firearm by the county under the Tort Claims Act. We consistently have defined "use" to be more than making tangible personal property available for use by another. To use something, the governmental unit must "put [it] or bring [it] into action or service [or] employ [it] for or apply [it] to a given purpose." Cowan , 128 S.W.3d at 246. For the government to "use" tangible personal property, "the governmental unit [must] itself [be] the user," id. , and "the injury must be contemporaneous with the use of the tangible personal property." Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 389 (Tex. 2016). Annab's allegation that the county enabled, authorized, or approved Caplan's use of the firearm does not amount to an allegation that the county used the firearm. This allegation therefore does not trigger the Tort Claims Act's waiver of immunity.

Annab also attempts to overcome Harris County's immunity by alleging that the county's various administrative decisions regarding Caplan's employment amount to the "use of tangible personal property." Annab points to Caplan's troubled employment history before and during his time as a constable. She alleges that Caplan's bad acts prior to and during his employment demonstrate that the county should not have hired Caplan, should have fired Caplan, or should have withdrawn its authorization for him to possess his firearm while on duty. Although these allegations have little to do with the county's liability under the Tort Claims Act, they demonstrate that Caplan's record may not have made him the ideal candidate to be a peace officer. Caplan disclosed on his application that he had been fired from 12 of 21 prior jobs, that he was dismissed...