Texas Youth Com'n v. Ryan

• Citation: 889 S.W.2d 340
• Decision Date: 21 July 1994
• Docket Number: No. B14-92-00905-CV,B14-92-00905-CV
• Parties: TEXAS YOUTH COMMISSION, Appellant, v. Peggy RYAN, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 340

889 S.W.2d 340

TEXAS YOUTH COMMISSION, Appellant, v. Peggy RYAN, Appellee.

No. B14-92-00905-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 21, 1994.

Janet Seymour Morrow, Houston, for appellant.

Scott A. Durfee, Houston, for appellee.

Before MURPHY, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Appellee brought suit against appellant, a state governmental entity, under the Texas Tort Claims Act. Based on the jury verdict, the trial court entered judgment for $100,000 to appellee, for injuries she sustained when she was beaten, stabbed, and raped by Tyson Butler ("Butler"), a student in appellant's custody. The jury found that appellant was negligent in supervising the youth and in its misuse of tangible personal property, namely written diagnostic tests concerning evaluation, placement, and control of Butler, which was a proximate cause of appellee's injuries. In one of seven points of error, appellant asserts that the trial court erred in refusing to find as a matter of law that appellant, as a state agency, is immune from suit, because appellee's injuries were not caused by a use or condition of tangible, real or personal property as required by TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986). Specifically, appellant contends that the use of diagnostic tests and evaluation forms to determine Butler's placement and discipline does not constitute a use of tangible personal property as required by the Texas Tort Claims Act ("TTCA"). It is unnecessary to discuss appellant's other points of error, as we find that, as a matter of law, appellant's utilization of the information contained in written diagnostic tests for placement purposes did not constitute a use of tangible personal property as required by the TTCA, as that use affected appellee. Accordingly, we reverse and render judgment in favor of appellant.

The facts reflect that prior to May 6, 1986, Butler had established himself as an habitual juvenile offender, with the potential for more serious crimes. Beginning on December 10, 1982, when he was thirteen years old, Butler was found guilty of criminal mischief. Over the next three years, Butler committed a total of eight thefts, two of which were felonies. Butler received probation for the first several thefts, but was eventually placed in the custody of the Harris County Youth Village on August 22, 1983. However, he was never incarcerated for any long period of time, and was allowed to attend school and otherwise wander freely.

Butler also had a history of absenteeism in school, as well as a record for getting into altercations with other students. Finally, after the eighth theft, the Harris County Juvenile Authorities recommended that Butler be committed to the appellant because: "Tyson's repeated law violations reflect he is not taking the law seriously." Consequently, on January 8, 1986, the 314th Judicial District Court of Harris County signed a commitment order placing Butler in the custody of appellant, stating, "Mr. Butler needs a highly structured environment with constant supervision and control." Butler then underwent a twelve-day diagnostic evaluation at the appellant's reception center, in order to determine whether Butler should be sent to a highly structured state school environment, or to a less supervised halfway house program.

To make this determination, the caseworkers employed by appellant utilized a diagnostic tool called the "Reception Center Placement Scoring/Decision Form," which rated students from zero to higher numbers, zero representing no problems in the scored area, with the number score increasing in relation to the severity of the problem. Prior to 1984, a score of twelve was the determinative score which concluded the appropriate placement for the graded student. At the time Butler was evaluated, however, the cut-off point was raised to fifteen.

When Butler was originally tested, he received a score of sixteen, which would have placed him above the maximum risk level for a halfway house program, and, therefore, he would have been committed to a state school or similar environment. In making this determination, the scoring committee did not consider any of Butler's prior offenses aside from the eighth theft conviction, because it was the act which resulted in his commitment. Had the committee considered the seven prior thefts, and other delinquent conduct, Butler would have received at least two additional points as an habitual offender, for a total of eighteen. However, the committee instead decided to change Butler's score with regard to prior placements, reflecting his unsuccessful tenure in the Harris County Youth Village, from a "one" to a "zero." This lowered his total score to the cut-off point, enabling him to be eligible for a halfway house program. As a result, the diagnostic tests and evaluation information was sent with Butler to appellant's Schaeffer House in El Paso, Texas, on January 21, 1986.

Upon arriving at Schaeffer House, Butler was enrolled in Bellaire High School, though still under close supervision and custody of appellant. Soon after beginning school, Butler again became a disciplinary problem by missing school and fighting with other students. He was also reprimanded for disruptive behavior at the halfway house on February 4, 1986, and, as a result of a body search, a butter knife, taken from the kitchen, was found on his person.

Butler continued to cause problems at the public school as well as at Schaeffer House. Before being expelled from Bellaire High School, he was involved in thirteen different offenses, including absenteeism, problems at Schaeffer House, and assaulting a student by kicking him in the face. Finally, Schaeffer House personnel decided to relieve themselves of Butler. However, instead of re-evaluating him with the intention of placing Butler in a stricter climate, they merely transferred him to Middleton House in Richmond, Texas. It should be noted that this halfway house had experienced numerous problems with their residents committing crimes in the community, possibly due to the failure of Middleton House personnel to properly supervise the residents.

Because Butler was "Level 1," maximum risk student due to his high score on the diagnostic tests, he was supposed to be supervised when going to and from school. However, as was established at trial, Butler was seldom, if ever, accompanied to school, and often roamed the neighborhood asking residents for work. In fact, within the first month of his arrival at Middleton House, Butler was involved in seven incidents involving truancy, disrupting the halfway house program, threatening another resident, and other offenses similar to those he committed while at Schaeffer House.

As of May 2, 1986, the coordinator of Middleton House, Mr. Lupe Palacios ("Palacios"), became concerned that Butler's conduct was becoming more serious. Thus, he wrote a memorandum to the Middleton House supervisor, stating several of the problems caused by Butler, and relating that he was of the opinion that Butler should be transferred to a state school and that a pre-transfer hearing should be set immediately. Unfortunately, no immediate action was taken, and on May 6, 1986, Butler left the house and proceeded to beat, stab, and rape appellee.

The central issue in this appeal is whether appellant's use of the written diagnostic evaluation tests to determine Butler's placement constitutes a use of tangible personal property which proximately caused appellee's injuries. The general rule is that the state is immune from suit for the negligent or intentional acts of its employees unless a specific statutory exception exists. Appellee filed this action under TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986), which states:

A governmental unit in the state is liable for:

(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.

The facts of the present case indicate that appellant's employees or officers may well have been negligent in their supervision and evaluation of Butler. However, such negligence alone does not trigger a waiver of governmental immunity. The real question is whether appellant's negligence involved the use of tangible personal property so as to implicate a waiver under the above exception to sovereign immunity, and whether such negligent act by appellant's employees or officers proximately caused the injuries appellee suffered.

Appellant argues that not only was the use of the written diagnostic tools not a use of tangible personal property so as to fall within an exception to the TTCA, but that the intervening criminal acts of Butler destroys any nexus between its negligence and appellee's injuries. However, appellee urges us to seek guidance in the trend of opinions issued by the Texas Supreme Court and other courts of appeals regarding these matters. See Delaney v. University of Houston, 835 S.W.2d 56 (Tex.1992); Texas Department of Mental Health and Mental Retardation v. Petty, 848 S.W.2d 680 (Tex.1992); Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.1983).

First, we address the issue of intervening criminal conduct. While an intervening criminal action between a negligent act and a result generally abrogates third-party liability for negligence, it does not automatically vitiate the negligence cause of action, if the negligent actor should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a...