Tex. Dep't of Criminal Justice v. Rangel

• Decision Date: 07 February 2020
• Docket Number: No. 18-0721,18-0721
• Parties: TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner, v. Cesar RANGEL, Respondent
• Court: Texas Supreme Court

595 S.W.3d 198

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner,

v.Cesar RANGEL, Respondent

No. 18-0721

Supreme Court of Texas.

Argued November 6, 2019

OPINION DELIVERED: February 7, 2020

Justice Lehrmann delivered the opinion of the Court.

The Texas Tort Claims Act waives governmental immunity as to claims for personal injury proximately caused by a governmental unit’s use of tangible personal property, but the waiver does not apply in certain situations. In this case, a Texas Department of Criminal Justice prison guard fired a skat shell at a group of inmates in a prison dormitory, injuring the plaintiff. Department officials had authorized and instructed the guard to use the tear-gas gun and shell in response to two groups of inmates who had threatened each other and refused to comply with orders from multiple prison officials for almost an hour. On appeal of the trial court’s denial of the Department’s plea to the jurisdiction, we are asked to determine (1) whether a governmental unit "uses" tangible personal property by authorizing and instructing its use for a given purpose and (2) whether, in these circumstances and at this procedural juncture, one or more of the Tort Claims Act’s exceptions for riots, emergencies, and intentional torts bar a claim for which the Act would otherwise waive immunity. The court of appeals answered yes to the first question and no to the second. While we agree that the Department "used" tangible personal property by authorizing and instructing the prison guard to use it for a given purpose, we hold that the riot exception applies and, therefore, that the Tort Claims Act does not waive the Department’s immunity for the plaintiff’s claims against it. Accordingly, we reverse the court of appeals’ judgment and dismiss the claims for lack of jurisdiction.

I. Background

The Texas Department of Criminal Justice runs The Pam Lychner State Jail in Humble, Texas. At approximately 10:30 p.m. on May 19, 2015, a group of about thirty inmates in a jail dormitory refused to "rack up"—or proceed to their beds for the nightly inmate count—after Department officials ordered them to do so. One of the officers in the dormitory requested a supervisor to assist with the situation. Lieutenant Cody Waller, the highest-ranking security officer in the facility, and three other Department employees responded. Waller ordered the inmates to rack up, and they complied. Waller and the other Department employees who responded to the call then returned to their regular duties.

Approximately thirty minutes later, twenty-six inmates left their bunks and refused to return to them. The inmates divided into two groups ("Group A" and "Group B") that were at odds with each other, and each group consisted of thirteen inmates who positioned themselves on opposite sides of the dormitory. One of the officers in the dormitory called for a supervisor again, and Waller and three other Department employees responded to the call. When they arrived, the two groups of inmates were yelling profanity at and threatening each other. Waller and another Department employee ordered the inmates to return to their assigned bunks, but the inmates refused to comply and continued to yell at and threaten each other.

In response, Waller ordered another Department employee, Sergeant Robert McLaughlin, to retrieve a camera and, as a show of force to gain compliance, a 37mm tear-gas gun. At that time, Waller did not intend to fire the tear-gas gun, knowing that he could not fire it without first "making a call to the Duty Warden to obtain the authorization to use it." McLaughlin went to the Department’s armory and requested a 37mm tear-gas gun, which another Department employee issued. Although McLaughlin did not request a specific type of munition, the armory issued two shells: a "muzzle-blast" round that discharges a puff of gas and a "skat shell" that launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters.

While the muzzle-blast round could be used indoors, the skat shell was designed for outdoor use only, as the Department notes that the skat shell has "fire producing capabilities" and its product description states that "[s]erious injury or death may occur if the [shell] is misused." As a result, Department policy required that all skat shells be labeled clearly to warn employees to use those shells only outdoors. However, the warning label on the skat shell issued to McLaughlin had been smeared off.

While McLaughlin retrieved the tear-gas gun and shells, the inmates grew more unruly. Waller’s incident report noted that the inmates became more aggressive towards each other, striking their closed fists into the palms of their hands and continuing to verbally threaten each other. When McLaughlin returned with the tear-gas gun and a camera, the inmates became less aggressive but continued to threaten each other, shouting that they should "handle this right now." One inmate reportedly yelled that the inmates would not rack up and that the guards might as well fire the shells because, as soon as the guards left, the inmates would fight. Waller again ordered the inmates to rack up, but the inmates still refused to comply.

Waller then left the dormitory to seek authorization to use the tear-gas gun on the inmates, temporarily handing over the gun and shells to Sergeant Reginald Murray. The Department’s Use of Force plan states that "[t]he highest-ranking shift supervisor on duty shall decide if a chemical agent shall be used to gain compliance." That person was Duty Warden Major Bridgette Hayes. Waller called Hayes, and the two discussed the incident for approximately fifteen to twenty minutes. Hayes ultimately authorized and instructed Waller to use the tear-gas gun and shells if the inmates refused to comply after two more orders. Waller testified that, if an officer has "authorization to use the [37mm tear-gas gun], it is implied that munition is going to be used with it."

After Hayes authorized Waller’s use, Waller returned to the area outside the dormitory shortly after 11:20 p.m. The inmates had continued to threaten each other in Waller’s absence. Once Waller arrived at the area outside the dormitory, he reclaimed the tear-gas gun and shells from Murray and loaded the skat shell into the tear-gas gun. After turning on the camera to document his next actions, he stated that he would give two orders and, if the inmates still refused to comply, he would shoot the tear-gas gun. He and a few other Department employees entered the dormitory, where several other employees were standing. The two groups of inmates stood on opposite sides of the room, having still not returned to their bunks.

Waller gave his first order for the inmates to return to their bunks and warned that, if the inmates did not comply, he would use the tear-gas gun and shells to gain compliance. The other Department employees in the dormitory then repeated the order, yelling "Rack it up!" several times. At that point, most of the Group B inmates returned to their bunks, but the Group A inmates did not. Waller then approached the Group A inmates, and they moved away from the door. As the Group A inmates moved towards the dormitory’s bathroom, the other Department employees continued to yell "Rack it up!" Waller ordered the Group A inmates a second time to rack up, but they did not.

Waller then approached the noncomplying inmates. He gave two more orders to rack up, but again the inmates did not comply. Waller then raised the weapon and fired. The skat shell hit one of the inmates, Cesar Rangel, in his chest and hand. As the smoke spread throughout the dormitory, the Department employees ordered the inmates to lie down on the ground, and they complied. After the gas in the dormitory cleared, the Department employees placed the Group A inmates in hand restraints and escorted them out of the dormitory. Rangel suffered burns and a fractured hand as a result of the incident.

The Department conducted an internal use-of-force review that "revealed several mistakes" as to how the incident was handled, noting that the skat shell was "designed for outdoor areas" only and "that chemical agents should have been administered through the door rather than in the middle of the housing area." Following the review, the Department disciplined Waller for his actions, placing him on administrative leave for ten months.

Rangel filed suit against the Department.¹ In his live petition, Rangel alleged that the Department is liable for breaching its duty to Rangel by "(i) dispensing the skat shell in response to an indoor situation, (ii) keeping the skat shell in a defective, unlabeled condition, and (iii) approving Lt. Waller’s use of force." The Department filed a plea to the jurisdiction, no-evidence motion for summary judgment, and traditional motion for summary judgment. In each of those pleadings, the Department asserted that its sovereign immunity had not been waived for Rangel’s claims against the Department. Rangel filed a joint response, asserting that the Department’s negligent use of the tear-gas gun and skat shell caused his damages, that the Tort Claims Act’s intentional-tort exception did not apply because it was the Department’s actions—not Waller’s—that were the subject of Rangel’s negligence claim against the Department, and that a fact question existed as to whether the Act’s emergency and riot exceptions applied to bar his claims. The trial court denied the Department’s 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 shell because it "furnished tangible personal property that, when used for the specific purposed intended, caused Rangel’s injury." Id. at 320. As such, the court held that Rangel...