Texas Dept. of Criminal Justice v. Simons

• Decision Date: 09 July 2004
• Docket Number: No. 02-0479.,02-0479.
• Citation: 140 S.W.3d 338
• Parties: TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner, v. Brian Edward SIMONS, Respondent.
• Court: Texas Supreme Court

140 S.W.3d 338

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner, v. Brian Edward SIMONS, Respondent.

No. 02-0479.

Supreme Court of Texas.

Argued September 24, 2003.

Decided July 9, 2004.

Appeal from the 411th Judicial District Court, Polk County, Robert Hill Trapp, J.

J. Woodfin Jones, Alexander Dubose Jones & Townsend LLP, Austin, for Amicus Curiae Brian Edward Simons.

Greg Abbott, Atty. Gen. of Texas, Danica Lynn Milios, Howard G. Baldwin, First Asst. Attys. Gen., Philip A. Lionberger, Brown McCarroll, L.L.P., Michael T. McCaul, Executive Asst. Atty. Gen., Ryan D. Clinton, Julie Caruthers Parsley, Susan Mara Stith and Jay T. Kimbrough, Rafael Edward Cruz, Barry Ross McBee, Austin, for Texas Department of Criminal.

Greg White, McGregor and White, and Aubrey R. Williams, Montez Williams & Baird, P.C., Waco, for Brian Edward Simons.

Justice HECHT delivered the opinion of the Court.

In Cathey v. Booth, we construed section 101.101 of the Texas Tort Claims Act¹ to provide that a governmental unit is entitled to receive formal, written notice of a claim against it within six months of the incident from which the claim arises unless it has actual notice of the claim, including knowledge of its "alleged fault producing or contributing to the death, injury, or property damage".² The courts of appeals have differed over exactly what this knowledge of alleged fault entails, and we granted the petition for review in this case to revisit the issue. Here, the court of appeals held that petitioner's investigation of an accident provided it with the required knowledge and therefore affirmed the trial court's denial of petitioner's plea to the jurisdiction.³

In another case decided today, we hold that lack of notice does not deprive the trial court of subject matter jurisdiction.⁴ Although the parties in this case have not raised that issue, we nevertheless conclude that because lack of notice cannot be made the basis of a plea to the jurisdiction in the trial court, the court of appeals had no jurisdiction over this interlocutory appeal and should have dismissed it. Accordingly, while we resolve the issue the parties have presented, we reverse the judgment of the court of appeals and render judgment dismissing the appeal.

I

While incarcerated at the Terrell Unit of the Texas Department of Criminal Justice (TDCJ), Brian Simons and other inmates were assigned the work of installing a guardrail around a natural gas manifold that serviced the facility. They were digging postholes with a tractor-mounted auger driven by the tractor's power take-off (a rotating splined shaft extending from the body of the tractor and powered by the engine through the transmission, to which the drive shaft of the auger was coupled). When the auger got stuck boring into the ground, the power take-off was disengaged while Simons attempted to back the auger out of the ground by using a 48-inch pipe wrench to turn the drive shaft in reverse. By mistake, the power take-off was re-engaged with the heavy wrench still gripping the drive shaft, causing the wrench to swing around sharply, striking Simons in the head. It is not clear whether the tractor operator failed to warn Simons to stand clear of the auger, or whether Simons did not hear the warning because of a hearing impairment, or whether he was warned and simply failed to comply. He was taken to the hospital, where he underwent surgery the same day to repair multiple orbital and facial fractures and a laceration of his right eye. Simons lost the eye as well as the hearing in his right ear.

TDCJ immediately investigated the incident. Within hours it took statements from the work supervisor, Ron Canon, and three inmates who were at the scene. Canon filed this brief official report:

On 8/30/94 while digging holes to mount guard, digger got stuck. I/M Simons, Brian 614989 and myself (Mr. Canon [SSN omitted]) used a pipe wrench to free digger and took wrench off when free. I/M put wrench back on when PTO was turned on wrench hit I/M on right cheek.

His statement to the prison safety officer, Harris Jackson, expanded somewhat:

On 8/30/94 Inmate Simons, Brian 614989 and myself (Mr. Canon) were digging holes to mount guards around the gas manifold. The post hole digger got stuck in the hole. At this time the PTO on the tractor was disengaged. I instructed the inmate to stand clear in case the post hole digger came loose so it would not hit him. After getting the digger free, inmate Simons and myself took the pipe wrench off the digger. At this time, I walked around the digger to get on the tractor. Between the time I walked around the tractor, the pipe wrench was put back on the digger. I looked back and could only see the inmate did not see the wrench. I turned the PTO on and heard wrench hit digger and inmate was on the ground. I turned tractor off and called for medical.

Canon also filed an "offense report" citing Simons for violating prison rules by failing to "stand clear of digger" as ordered.

One of the inmates working with Canon and Simons, Earl Huff, gave the following statement:

On Tuesday, 8/30/94 at approximately 9:30 am officer Canon, myself Huff, Earl 502003, inmate Suire, Daniel TDC 631261 and inmate Thomas, Michael 591893 and inmate Simons, Brian TDC 614989 was in the process of putting a guard rail barricade around a gas line using a tractor and augur [sic] to drill holes when the drill bit become stuck in the ground. We then started to back the drill bit out by using a pipe wrench. Once the drill bit was loose enough to use the tractor Officer Canon told every one to get back. The pipe wrench had been removed from the shaft of the augur [sic] and for some reason inmate Simons re-attached the pipe wrench when Officer Canon had told everyone to stand clear and at the same time Mr. Canon was ready to start the augur [sic] Simons reached over the augur [sic] and the pipe wrench came up and hit him in the face.

Another, Daniel Suire, was briefer:

I Daniel Suire TDC 631261 was at the scene when the accident happened. Mr. Canon told all of us to get away. I was showing Mr. Canon the P.T.O. turn on switch. The next thing I heard was a loud pop and when I looked back inmate Simons was on the ground.

The third, Michael Thomas, was briefer still:

Mr. Canon told us all to get back from the tractor so I went back to my usual job. Then when I turned I saw inmate Simons laying on the ground.

The next day, TDCJ took brief statements from three corrections officers who responded to the incident, but none shed any light on how it occurred. On September 1, 1994, two days after the accident, Jackson, the prison safety officer, sent the regional safety officer, Bernard Belvin, this report:

Synopsis: Inmate Simons, Brian TDCJ# 614989 received major facial fractures right side face under eye, while working in maintenance squad digging post hole with tractor and augger [sic].

Narrative: Inmate Simons, Brian TDCJ# 614989 reported to work at maintenance on 8-30-94 at approx. 6:00 am, and was assigned to work with squad digging post holes to install guard rail around main natural gas manifold that supplies unit. From approx. 6:00 am until approx. 8:00 am material and tools were gathered and loaded onto trailor [sic] for transport to the job site. While digging the northwest corner post hole, augger [sic] became stuck in hole. A 48 inch pipe wrench was used to back augger [sic] out, in the process to free augger [sic]. Mr. Canon, Ronnie maintenance job site supervisor was assisting inmate Simons in this process. Mr. Canon then told all inmates after pipe wrench was removed from PTO drive shaft to "stand clear". Mr. Canon then walked from right side of augger [sic] around back of augger [sic] to left side of tractor and climbed onto tractor. At this time Mr. Canon looked to make sure everyone was clear, which they were. Mr. Canon then leaned over and engaged PTO. At the same time inmate Simons put the pipe wrench back on the PTO drive shaft. Pipe wrench struck inmate Simons on the right side of face under eye. Mr. Canon heard a noise and disengaged the PTO, looked up and saw inmate Simons laying on ground. Mr. Canon climbed down from tractor and assisted inmate Simons until they arrived at the unit infirmary.

Recommendations: All employees and inmates in maintenance department be made aware of this accident, and what could have been done to prevent simular [sic] accidents from happening and inmate Simons recieve discipilinary [sic] for violation of safety policy and procedures.

Corrective Action: Disciplinary [sic] case has been written by maintenance supervisor and awareness training will be held on September 6, 1994 in maintenance about this accident.

As noted, Simons was cited and disciplined for misconduct in failing to stand clear of the auger as ordered.

On September 2, three days after the incident, Jackson and Belvin audiotaped an interview with Simons at the hospital. At the time, Simons was taking Vicodin, a prescription narcotic pain-reliever. We quote the relevant portions of the interview:

JACKSON: Inmate Simons, would you give us a statement of what you remember that happened in your own words.

SIMONS: We was digging post holes for the barricade to go around the gas well. The guy that was operating the tractor was kinda inexperienced, he was kinda new at it. He buried the auger in the ground, which caused the front of the tractor to lift up. I asked Mr. Canon and them to go get me a pipe wrench `cause — I'm a farm boy in the world — that is how you get them un-stuck in the world, and I was going to back the auger off and get it up off the ground. The boy that was operating the tractor — evidently — accidentally, he had to hit the PTO or something, and it caused the pipe wrench to hit me. That is the only way that it could have happened. If nobody — if he hadn't hit that PTO, or something like that would have happened, the wrench wouldn't have hit me — because you can...