Tex. Dep't of Criminal Justice v. Rangel
| Decision Date | 28 June 2018 |
| Docket Number | NO. 01-17-00956-CV,01-17-00956-CV |
| Citation | 581 S.W.3d 313 |
| Parties | TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant v. Cesar RANGEL, Appellee |
| Court | Texas Court of Appeals |
Amber McKeon-Mueller, Christopher Lindsey, Austin, for Appellant.
Anthony Garza, San Antonio, for Appellee.
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
In this appeal, we consider whether the Texas Tort Claims Act1 [TTCA] permits an inmate to sue the Texas Department of Criminal Justice ["TDCJ"] for injuries he sustained when a prison guard used a tear gas gun to disperse two groups of inmates who were threatening to fight and refusing to return to their cells for the night. Specifically, we consider whether (1) furnishing the gun and gas shells to the prison guard was a negligent "use" of tangible personal property under the TTCA, (2) application of the TTCA is precluded because the prison guard’s act was alleged to be an intentional tort, or (3) the emergency and riot exceptions to the TTCA’s limited waiver of immunity apply. We affirm the trial court’s denial of TDCJ’s plea to the jurisdiction.
On May 19, 2015, at 10:30 p.m., several inmates at Lychner State Jail refused to return to their bunks, or "rack up," for the night. TDCJ requested a supervisor, and Lieutenant Cody Waller, a TDCJ prison guard, responded and ordered the inmates to "rack up," which they did at that time.
Approximately 30 minutes later, Waller was again called to the dormitory because the inmates were refusing to return to their bunks for a count. When Waller arrived again, two groups of 13 inmates each were engaged in a verbal altercation and were threatening to fight. Waller and a sergeant ordered the inmates to return to their bunks, but the inmates refused to do so. Waller then requested that the sergeant retrieve a 37-mm gas gun and a video camera as a show of force. While waiting for the camera, the inmates began making aggressive gestures to one another, such as striking their closed fists against the palms of their hands.
The sergeant retrieved a video camera, 37-mm gas gun, and two rounds of gas from the armory. The two rounds of ammunition were different. One was longer, had the word "smokeless" written on it, and the rest of the writing on it was faded. The second round was shorter in length.
Once the guards had the gun and camera, the inmates became less aggressive, but continued threatening one another verbally. One inmate said,
Waller handed the gas gun and ammunition to the sergeant and went to speak to the duty warden to obtain authorization to use the gas gun. Waller and the duty warden discussed the issue for 15 to 20 minutes. The duty warden told Waller to give the inmates two verbal orders to comply and authorized the use of the gas gun if the offenders still refused to rack up.
As Waller was walking back to the dormitory, he loaded the longer of the two shells in the gun. He used the longer "skat shell" in the gun rather than the shorter "muzzle blast shell."
Back in the dormitory, Waller gave four separate orders for the inmates to return to their assigned bunks or he would disperse the chemical agents. One group of inmates refused to comply with each order. Waller then fired the gas canister into the group of inmates who were refusing to comply with orders. The "skat round" that was in the 37-mm gas gun hit Rangel, causing burns and a fractured hand.
TDCJ later determined that Waller had inadvertently used the "skat round," which was designated for outdoor use only. TDCJ found that "[a]lthough the inappropriate round was used, chemical agents were necessary to prevent a major disturbance and imminent bodily harm to staff and offenders."
Rangel filed suit against both Waller and TDCJ. Rangel’s Second Amended Petition alleges that TDCJ is liable for (1) dispensing the outdoor-only skat shell for use in handling an indoor situation, (2) labeling the skat shell improperly because the writing on it was smeared and faded, and (3) authorizing Waller to use the gun without questioning Waller’s choice of chemical-agent munition. Rangel also filed "excessive force" claims against Waller, the sergeant, and the duty warden under 42 U.S.C. § 1983.
TDCJ filed a plea to the jurisdiction, alleging that, because Rangel’s claims arose from an alleged use of excessive force, an intentional tort, his pleadings did not state a claim against TDCJ for which sovereign immunity has been waived under the TTCA. Rangel responded to the plea to the jurisdiction, alleging that TDCJ’s negligent use of personal property caused his damages, that the intentional-tort exception to the limited waiver of sovereign immunity did not apply because TDCJ’s negligence in furnishing the skat shell combined with Waller’s excessive use of force to cause his injuries, and that the emergency and riot exceptions to the limited waiver of sovereign immunity presented a fact question for a jury.
The trial court denied TDCJ’s plea to the jurisdiction and this interlocutory appeal followed.2
In several related issues on appeal, TDCJ contends that the TTCA does not waive sovereign immunity in this case because there was no "use" of tangible personal property. Specifically, TDCJ contends that providing the ammunition and gun to the prison guard and authorizing the use of the gun over the telephone was not a "use" of tangible personal property. TDCJ also contends that, even if there was a "use" of tangible personal property, there was no waiver of sovereign immunity because the prison guard who fired the skat round was either (1) responding to an "emergency situation, civil disobedience, or riot" or (2) committing an intentional tort. We address each contention respectively.
A plea to the jurisdiction based on governmental immunity challenges a trial court’s subject-matter jurisdiction. State v. Holland , 221 S.W.3d 639, 642 (Tex. 2007) ; Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004). An appeal may be taken from an interlocutory order granting or denying a plea to the jurisdiction filed by a governmental unit. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (West Supp. 2017). We review de novo the trial court’s ruling on a plea to the jurisdiction. City of Houston v. Rhule , 417 S.W.3d 440, 442 (Tex. 2013) (per curiam).
The plaintiff must allege facts that affirmatively establish the trial court’s subject-matter jurisdiction. Holland , 221 S.W.3d at 642. In determining whether the plaintiff has satisfied this burden, we construe the pleadings liberally in the plaintiff’s favor and deny the plea if facts affirmatively demonstrating jurisdiction have been alleged. Id. at 643 ; Miranda , 133 S.W.3d at 227 ; Smith v. Galveston Cnty. , 326 S.W.3d 695, 697–98 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
When a defendant challenges the existence of jurisdictional facts in a plea to the jurisdiction, the trial court must consider relevant evidence submitted by the parties. City of Waco v. Kirwan , 298 S.W.3d 618, 622 (Tex. 2009) ; Miranda , 133 S.W.3d at 227. Because the standard of review on appeal "generally mirrors that of a summary judgment," in reviewing the evidence presented, we take as true all evidence favorable to the nonmovant and indulge reasonable inferences and resolve doubts in her favor. Miranda , 133 S.W.3d at 228. When the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. If, however, the evidence creates a fact question regarding jurisdiction, then the trial court must deny the plea, and the fact issue will be resolved by the factfinder. Id. at 227–28.
Section 101.021(2) of the Texas Civil Practice and Remedies Code provides that a governmental unit is liable for personal injury or death caused by the 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 ANN . § 101.021(2) (West 2011).
To fall within the waiver of section 101.021(2), the plaintiff’s injury "must be proximately caused by the condition or use of tangible property." Dall. Cty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998). "The requirement of causation is more than mere involvement," and "[p]roperty does not cause injury if it does no more than furnish the condition that makes the injury possible." Id. ; see Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 588 (Tex. 2001). The Texas Supreme Court requires a causal nexus between the use of the property and the plaintiff’s injury. Dall. Area Rapid Transit v. Whitley , 104 S.W.3d 540, 543 (Tex. 2003) ; see Bossley , 968 S.W.2d at 342–43 (); Univ. of Tex. Med. Branch Hosp. v. Hardy , 2 S.W.3d 607, 609 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ().
TCDJ contends that "[m]erely furnishing the gun, a muzzle blast round, and the skat shell was not a negligent ‘use’ under the TTCA." In support, TDCJ relies on Dallas County Mental Health & Mental Retardation v. Bossley . In Bossley , a mentally ill patient escaped through unlocked hospital doors and later committed suicide by leaping in front of a truck. 968 S.W.2d 339, 340–41 (Tex. 1998). The Texas Supreme Court concluded that neither the use of tangible property, i.e., unlocking the hospital doors, nor...
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Tex. Dep't of Criminal Justice v. Rangel
...plea to the jurisdiction, and the Department filed an interlocutory appeal.2 The court of appeals affirmed. 581 S.W.3d 313, 324 (Tex. App.—Houston [1st Dist.] 2018). The court first held that, under section 101.021 of the Tort Claims Act, the Department "used" the tear-gas gun and skat shel......