Michelle LaGrone v. State ( 2012 )

NO. 07-11-00376-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 22, 2012
BILLY RAY JONES, APPELLANT
v.
LUBBOCK COUNTY WATER CONTROL AND
IMPROVEMENT DISTRICT NO. 1, APPELLEE
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2011-556,771; HONORABLE RUBEN GONZALES REYES, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Billy Ray Jones, appeals from the trial court’s dismissal of his lawsuit
after granting a plea to the jurisdiction filed by appellee, Lubbock County Water Control
and Improvement District No. 1. We will affirm the judgment of the trial court.
Factual and Procedural Background
On November 10, 2010, Jones was performing community service as a volunteer
assigned to work for the Water District. The task that Jones undertook to perform that
day was to rake a pile of smoldering wood and brush that had been burning for several
days. Jones contends that he was provided with a rake and a hoe to perform the task
at hand. The Water District contests whether the record supports this fact. As a result
of working on the pile of smoldering wood while wearing tennis shoes, Jones suffered
burns to his feet. Jones filed suit alleging that the Water District failed to provide him
with proper safety training and instruction or proper safety equipment or protective
clothing. Jones sued under a negligence theory for compensatory damages.
The Water District filed a plea to the jurisdiction of the trial court that alleged that,
as a local governmental unit, the Water District enjoyed governmental immunity from
both suit and liability. The trial court conducted a hearing on the Water District’s plea to
the jurisdiction and granted the same. Subsequently, the trial court entered an order
granting the plea to the jurisdiction and ordering that Jones’s cause of action be
dismissed with prejudice.
Jones gave notice of appeal and brings forth a single issue to this Court. Jones
contends that the Water District waived its governmental immunity by failing to provide
him with any safety equipment or protective clothing. Disagreeing with Jones, we will
affirm the judgment of the trial court.
Standard of Review
A plea to the jurisdiction is a dilatory plea that challenges the trial court’s
jurisdiction to hear the subject matter of the lawsuit. Timmons v. Univ. Med. Ctr., 331
S.W.3d 840, 843 (Tex.App.—Amarillo 2011, no pet.) (citing Harris Cnty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004)). Subject matter jurisdiction is essential for a trial court to
decide a case. Ackers v. City of Lubbock, 253 S.W.3d 770, 773 (Tex.App.—Amarillo
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2007, pet. denied). The question of whether a court has subject matter jurisdiction is a
question of law that we review de novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625
(Tex. 2010). We recognize that, if the plea to the jurisdiction challenges the existence
of jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issue raised. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227 (Tex. 2004). However, 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. We will review the
pleadings of the party asserting jurisdiction in the light most favorable to the trial court
having jurisdiction. See Leach v. Tex. Tech Univ., 335 S.W.3d 386, 391 (Tex.App.—
Amarillo 2011, pet. denied).
Applicable Law
Both parties recognize that the Water District is a political subdivision of the State
of Texas. Political subdivisions within the State of Texas enjoy governmental immunity,
which protects them from lawsuits for damages. Harris Cnty. Hosp. Dist. v. Tomball
Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Governmental immunity involves two
issues: whether the State has consented to suit, and whether the State has accepted
liability. Id. Immunity from suit is jurisdictional and bars suit. Id. A statute shall not be
construed to waive immunity unless the waiver is effected by clear and unambiguous
language. TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2012).
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Analysis
Jones brings his cause of action against the Water District under the Texas Tort
Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). 1 Jones
contends that section 101.021(2) is both a clear and unambiguous waiver of
governmental immunity, and is applicable to the facts as alleged in the original petition.
The Water District does not contest that section 101.021(2) is a clear and unambiguous
waiver of immunity. Rather, the Water District’s position is that the section is not
applicable to the cause of action as pled by Jones.
Section 101.021 states, in relevant part:
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 question of the use of tangible personal property in connection with a section
101.021(2) tort action has been the subject of numerous Texas Supreme Court
decisions. Jones cites the Court to two of the earliest decisions to support his
contention that section 101.021(2)’s waiver of immunity is applicable to the facts
presented in this case. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976);
Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989). Lowe was a suit
by a former football player at the university who was injured while playing a game after
having been sent back in the game without a protective knee brace. Lowe, 540 S.W.2d
at 300. In Robinson, the action complained of was the failure to furnish Robinson with a
1
Further reference to the Texas Civil Practices & Remedies Code will be by
reference to “Section ___,” “section ____” or “§ ____.”
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life preserver while on a swimming outing, even though MHMR knew that Robinson
suffered from epileptic seizures that could result in Robinson becoming unconscious.
Robinson, 780 S.W.2d at 169. These cases came under scrutiny in the case of
Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584-85 (Tex. 1996), where the Court
held that Lowe and Robinson represented “the outer bounds of what we have defined
as use of tangible personal property.” Id. Kerrville arose when a state hospital used an
oral form of drug to treat a patient who had a history of non-compliance with
medications instead of an injection form of the psychotropic drug. Id. at 584. The Court
went on to explain that, in deciding the earlier cases, it was not the intent of the Court to
allow both use and nonuse of property to result in a waiver of immunity. Id. at 585.
Consequently, the Court held that the precedential value of the Lowe and Robinson
cases was limited to situations where the claimant alleged that the “state actor has
provided property that lacks an integral safety component” which led to the claimant’s
injuries. Id.
It is into this narrow window of waiver of immunity that Jones contends his action
fits. We conclude that Jones’s contention must fail for two reasons. First, a review of
the live pleadings reveals that Jones did not contend that the Water District provided
property that lacked an integral safety component. Rather, the live pleading simply
alleges that the Water District failed to provide safety training or instruction and, further,
that Jones was furnished no protective clothing or equipment. See Leach, 335 S.W.3d
at 391. Simply put, the pleadings do not allege facts that overcome the Water District’s
plea to the jurisdiction. See Miranda, 133 S.W.3d at 227.
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In his brief and at oral arguments, Jones argues that, during the discovery
process, other facts were developed that showed that the Water District provided a rake
and a hoe for Jones’s use in raking the embers of the brush pile. The Water District
hotly disputes that these were facts before the trial judge. For purposes of this opinion,
we need not decide this issue but rather will accept Jones’s proposition that the facts
were before the trial court in the remaining portion of our analysis.
Even when we accept these facts, Jones’s action still fails for the second reason.
There is nothing in the record that would lead us to agree with Jones’s argument that
boots were an integral safety component of the equipment furnished by the Water
District. Kerrville, 923 S.W.2d at 585. There is simply nothing in the record before us to
demonstrate how boots are an integral safety component of a rake or hoe. The
simplest definition of integral is an adjective meaning “essential to completeness,” or
“formed as a unit with another part.” MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 650
(11th ed. 2003). We fail to see how boots are an integral safety component of a rake or
hoe. Rather, in the final analysis, Jones is complaining of the failure of the Water
District to furnish him boots. As such, we are faced with a situation that the Texas
Supreme Court has determined is a nonuse of property. See City of N. Richland Hills,
Tex. v. Friend, 370 S.W.3d 369, 372 (Tex. 2012). A nonuse of property is not sufficient
to invoke section 101.021(2) as a waiver of governmental immunity. Id. If it did,
governmental immunity would be rendered a nullity. Id. (citing Kerrville, 923 S.W.2d at
586).
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Finally, in his brief Jones raises a safe workplace argument under the Texas
Labor Code. See TEX. LAB. CODE ANN. § 411.103(2) (West 2006). However, a review of
the record before us reveals that Jones did not present this argument to the trial court.
Accordingly, we decline to address the issue. See TEX. R. APP. P. 33.1(a).
Conclusion
Having overruled Jones’s issue, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
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