Texas = Judiciary Online

=20

Issued October 4, = 2007

In The

Court=20 of Appeals

For The

First=20 District of Texas

NO. =20 01-06-00364-CV

TEXAS DEPARTMENT = OF CRIMINAL=20 JUSTICE, Appellant

RAYMOND LOCKETT, = Appellee

On Appeal from the 23rd District=20 Court

Brazoria=20 County, = Texas

Trial Court Cause No.=20 95-3023

MEMORANDUM = OPINION

The Texas Department = of=20 Criminal Justice (=93TDCJ=94) brings this interlocutory appeal = challenging the=20 trial court=92s denial of its plea to the jurisdiction and motion = to dismiss=20 for lack of subject matter jurisdiction. On appeal, TDCJ contends = that the=20 court lacks subject matter jurisdiction over the suit because the=20 plaintiff=92s pleadings do not affirmatively allege facts that = support a=20 waiver of governmental immunity. =20 We reverse. =20

Background

This suit seeks = recovery of=20 damages resulting from the death of Raymond Lockett, which = occurred while=20 he was in TDCJ custody. = In=20 June 1993, during a basketball game with other inmates, Lockett = collapsed=20 on the court. He = did not=20 receive medical attention until approximately half an hour = later. During that time, the = TDCJ=20 employee who was present did assist Lockett. When medical personnel = arrived,=20 Lockett received CPR. = No=20 medical equipment, however, was available to assist in caring for=20 Lockett. The CPR = did not=20 resuscitate Lockett, and he died. =20 The cause of death was later identified as a heart=20 attack.

In January 1995, = Lockett=92s=20 estate and heirs filed suit, alleging that the TDCJ=92s negligence = caused=20 Lockett=92s death. = The original=20 petition, however, named Lockett as the sole plaintiff. After the TDCJ moved for = dismissal=20 based on lack of subject matter jurisdiction, the estate amended = the=20 petition on June 1, 1995, replacing Lockett as plaintiff with the = Estate=20 of Raymond Lockett (the =93Estate=94).

Other than amending = its=20 petition, the Estate did not respond to the TDCJ=92s plea to the=20 jurisdiction and motion to dismiss. =20 The trial court denied the plea, and this appeal = followed.

Discussion

Standard=20 of review

Sovereign immunity = and standing=20 are both components of subject matter jurisdiction, which is a = legal issue=20 subject to de = novo=20 review. Tex. Natural = Res.=20 Conservation Comm=92n v. IT-Davy, 74 S.W.3d 849, 855 = (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 = (Tex. 1998); see, e.g., City of Garland v. = Rivera, 146=20 S.W.3d 334, 337 (Tex. App.=97Dallas 2004, no pet.); City of Houston v. Northwood Mun. Util. = Dist. No.=20 1, 73 S.W.3d 304, 308 (Tex.=20 App.=97Houston [1st Dist.] 2001, pet.=20 denied). = =93[I]f the=20 pleadings affirmatively negate the existence of jurisdiction, then = a plea=20 to the jurisdiction may be granted without allowing the plaintiff = an=20 opportunity to amend.=94 =20 County = of=20 Cameron v. Brown, = 80 S.W.3d=20 549, 555 (Tex. 2002). We construe the = pleadings in=20 the plaintiff=92s favor and look to the pleader=92s intent. = Tex. Dep=92t of Parks & = Wildlife v.=20 Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Sovereign = immunity

In Texas, = under the=20 doctrine of sovereign immunity, a=20 governmental agency is not liable for the torts of its officers or = agents=20 unless a constitutional or statutory provision expressly waives = immunity=20 and consents to the suit. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 = (Tex.=20 1976). Sovereign = immunity=20 defeats a trial court=92s subject matter jurisdiction unless this = consent=20 exists. Tex. Dep=92t of Transp. v. = Jones, 8 S.W.3d 636, 638 = (Tex. = 1999). Governmental immunity = extends to=20 subdivisions of the State, including counties, cities, and school=20 districts. = Harris County v. Sykes, 136 S.W.3d 635, = 638=20 (Tex.=20 2004). Thus, = =93[i]n a suit=20 against a governmental unit, the plaintiff must affirmatively = demonstrate=20 the court=92s jurisdiction by alleging a valid waiver of = immunity.=94=20 Dallas Area Rapid = Transit v.=20 Whitley, 104 S.W.3d 540, 542 (Tex. 2003). The Estate thus bore the = burden to=20 allege facts affirmatively showing that the trial court had = jurisdiction=20 over its claims. Tex.=20 Ass=92n of Bus., 852 S.W.2d at 446. =

The Estate has = invoked the=20 Texas Tort Claims Act as the basis for its suit. In reviewing whether the = Estate=20 met its burden to show subject matter jurisdiction, we look to the = Act=92s=20 terms to determine the scope of its waiver, and then determine = whether the=20 particular facts alleged in this case come within its scope. Tex. Dep=92t of Crim. Justice v. = Miller,=20 51 S.W.3d 583, 587 (Tex. 2001); = Tex. Natural Res. Conservation = Comm=92n v.=20 White, 46 S.W.3d 864, 868 (Tex. 2001).

The Tort Claims Act = permits=20 suits against governmental entities in certain specified = circumstances,=20 limiting governmental unit liability to:

(1) = ; =20 property=20 damage, personal injury, and death proximately caused by the = wrongful act=20 or negligence of an employee acting within his scope of employment = if:

(A) the property = damage,=20 personal injury, or death arises from the operation or use of a=20 motor-driven vehicle or motor driven equipment; = and

=20

(B) the = employee=20 would be personally liable to the claimant according to Texas law; = and

(2) = personal injury=20 and death so caused by a condition or use of tangible real or = personal=20 property if the governmental unit would, if it were a private = person, be=20 liable to the claimant according to Texas = law.

Tex.=20 Civ. Prac. & Rem. Code Ann. =A7 101.021 = (Vernon = 1997). The Estate relies on = subsection=20 101.021(2) for its suit. =20 Under this provision, =93the plaintiff must allege that (1) = property=20 was used or misused by a government employee and (2) the use = proximately=20 caused personal injury or death.=94 =20 Archibeque v. N. = Tex.=20 State Hosp., 115 = S.W.3d 154,=20 158 (Tex. App.=97Fort Worth 2003, = no=20 pet.). =93Use=94 = means to put or=20 bring into action or service or employ for or apply to a given=20 purpose. = Miller, 51 S.W.3d at 588;=20 Kerrville=20 State Hosp. v. = Clark, 923 S.W.2d 582, 584 = (Tex.=20 1996).

The personal injury = or death=20 also must be =93caused by=94 the condition or use of the property. = Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 101.021(2). Accordingly, the = plaintiff must=20 allege, among other things, that the property=92s use proximately = caused the=20 personal injury or death. Bossley, 968 S.W.2d at = 342=9643;=20 Archibeque, 115=20 S.W.3d at 159. =93Requiring=20 only that a condition or use of property be involved would = conflict with=20 the Act=92s basic purpose of waiving immunity only to a limited = degree.=94=20 Bossley, 968 S.W.2d at 343. =

In its pleading, the = Estate=20 asserts that the TDCJ negligently failed to: (1) provide proper = medical=20 treatment; (2) have medical personnel readily available for = medical=20 emergencies; (3) properly equip medical personnel; and (4) = properly=20 supervise prisoners. =20 Alternatively, the Estate claims that TDCJ failed to use = proper=20 medical techniques (i.e., timely use of CPR) and proper medical = devices to=20 revive Lockett. =20

The Estate=92s first = three=20 allegations do not allege that Lockett=92s death was caused by a = TDCJ=20 employee=92s use or misuse of any tangible property. Rather, under the = Estate=92s=20 negligence theory, the failure=20 to use equipment allegedly caused Lockett=92s injury. The Texas Supreme Court = expressly=20 has held that allegations of non-use cannot support a claim that = comes=20 within the limited waiver defined in the Tort Claims Act. Miller, 51 S.W.3d at 587=9688 = (holding that=20 non-use of property does not waive sovereign immunity); Kerrville State Hosp., = 923 S.W.2d=20 at 584 (same); Fryman v. = Wilbarger=20 Gen. Hosp., 207 S.W.3d 440, 442 (Tex. App.=97Amarillo 2006, no = pet.)=20 (complaint that hospital failed to undertake adequate security and = safety=20 precautions, monitor security cameras, or provide security = personnel=20 sufficient to thwart attacks committed by third parties on = hospital=20 grounds fell short of satisfying elements of section 101.021(2)); = City of Sugarland v. = Ballard,=20 174 S.W.3d 259, 265 = (Tex.=20 App.=97Houston [1st Dist.] 2005, no pet.) (holding that claim = based on=20 police officers=92 failure to provide adequate care, = well-being and=20 safety of plaintiff while he was in custody did not fall within = express=20 language of Act=92s waiver provisions); Bonham v. Tex. Dep=92t = of Crim.=20 Justice, 101 S.W.3d 153, 160 (Tex. App.=97Austin 2003, no = pet.) (holding=20 that allegations concerning lack of surveillance equipment in = prison=20 restroom where sexual assault occurred involved non-use of = property and,=20 therefore, was not actionable under section=20 101.021(2)).

The Estate=92s = negligent=20 supervision claims likewise fail to come within the Act=92s = narrowly drawn=20 waiver provisions. = See Tex. A & M Univ. v. = Bishop, 156=20 S.W.3d 580, 581 (Tex. 2005) (holding that faculty advisors=92 = alleged=20 failure to properly supervise props does not constitute use of = tangible=20 personal property within Act=92s meaning; information in form of=20 instructions is not tangible personal property and thus does not = give rise=20 to claim under Act). Our=20 conclusion that the trial court has no subject matter jurisdiction = for=20 this reason is dispositive, and, thus, we do not reach the = TDCJ=92s other=20 issue.

Conclusion

After looking solely = to the=20 Estate=92s allegations, taking them as true, and construing them = in favor of=20 the Estate, we conclude that its amended petition does not present = a claim=20 in which immunity from liability, and therefore immunity from = suit, is=20 waived by the Texas Tort Claims Act. =20 Accordingly, we reverse the order denying the TDCJ=92s plea = to the=20 jurisdiction and dismiss the Estate=92s claims against TDCJ for = want of=20 jurisdiction.

All pending motions = are=20 dismissed as moot.

&nbs= p; = ; = &= nbsp; =20 Jane Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.