TEXAS DEPARTMENT OF CRIMINAL JUSTICE, PETITIONER, v. CESAR RANGEL, RESPONDENT
No. 18-0721
IN THE SUPREME COURT OF TEXAS
Argued November 6, 2019. OPINION DELIVERED: February 7, 2020
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF
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
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
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
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 alleged a claim for which the Act waives the Department‘s immunity, absent any applicable exception to that waiver.3 Id.
The court of appeals then concluded that none of the Tort Claims Act‘s exceptions to a waiver of immunity apply. Id. at 321, 324. The court examined three potential exceptions asserted by the Department: (1) the intentional-tort exception under
Having determined that the Department failed to conclusively demonstrate any of the Act‘s exceptions to a waiver of immunity, the court of appeals held that the trial court did not err in denying the Department‘s plea to the jurisdiction. Id. We then granted the Department‘s petition for review.
II. Standard of Review
Sovereign immunity implicates a trial court‘s subject matter jurisdiction and “thus is properly asserted in a plea to the jurisdiction.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction “may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). If a plea “challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court‘s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. In determining whether the plaintiff has met that burden, “we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff‘s] intent.” City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015).
But when a plea to the jurisdiction challenges the existence of jurisdictional facts, we look beyond the pleadings and consider evidence submitted by the parties “when necessary to resolve the jurisdictional issues raised,” even if the evidence implicates both the court‘s jurisdiction and the merits of a claim. Miranda, 133 S.W.3d at 227. For a plea that challenges the existence of jurisdictional facts, our standard of review generally mirrors that of a traditional summary judgment: a plaintiff must raise a genuine issue of material fact to overcome the challenge to the trial court‘s jurisdiction. Id. at 221, 228. In determining whether the plaintiff has met that burden, “we take as true all evidence favorable to” the plaintiff and “indulge every reasonable inference and resolve any doubts in the [plaintiff‘s] favor.” Id. at 228. If the evidence and allegations create a fact question regarding jurisdiction, then a court cannot grant a plea to the jurisdiction, and the factfinder must resolve the fact issue. Id. at 227–28. But “if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,” a court rules “on the plea to the jurisdiction as a matter of law.” Id. at 228.
III. Discussion
A. Use of Tangible Personal Property
We first determine whether Rangel asserted a claim for which the Act waives the Department‘s immunity, at least absent any applicable exceptions. A governmental unit may be sued if the Legislature has waived its immunity with clear and unambiguous language. Harris County v. Annab, 547 S.W.3d 609, 613 (Tex. 2018). Under the Tort Claims Act‘s immunity waiver, a governmental unit can be liable for certain injuries proximately caused by the “negligence or a wrongful act or omission of an officer or employee acting within the scope of his employment.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2019). As relevant here, the waiver encompasses claims for “personal injury . . . so caused by a . . . 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.”
In examining what constitutes “use” of tangible personal property for purposes of the Act‘s waiver, we have held that a governmental unit “does not ‘use’ personal property merely by allowing someone else to use it and nothing more.” Annab, 547 S.W.3d at 613 (quoting San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)). Instead, relying on the plain and ordinary meaning of the words the Legislature chose, we have held that a governmental unit “uses” tangible personal property if it puts or brings the property into action or service, or employs the property for or applies it to a given purpose. McKenzie, 578 S.W.3d at 513; Annab, 547 S.W.3d at 613; Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016). Further, the government‘s use of the property “must have actually caused the injury.” Sampson, 500 S.W.3d at 388–89 (quoting Tex. Dep‘t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001)).
The parties dispute whether the Department “used” tangible personal property under
We agree with the court of appeals that the Department “used” the tear-gas gun and skat shell when Hayes authorized and instructed Waller to use them to address the incident in the prison dormitory. As the court noted, Department employees “gave the prison guard the [tear-gas] gun and skat shell for the express purpose of using it to control the situation with the inmates.” 581 S.W.3d at 318. In doing so, the Department did not simply make available the tear-gas gun and skat shell to Waller; rather, the Department “put” the tear-gas gun and skat shell into “action or service” and “employ[ed]” them for the “given purpose” of addressing the incident with the inmates. Annab, 547 S.W.3d at 613 (citation omitted). Where, as here, a governmental unit authorizes or orders an employee to use tangible personal property for a specific purpose, that governmental unit has “used” the tangible personal property for purposes of the Act‘s waiver.
This understanding of “use” comports with our longstanding interpretation of the term. Again, we have interpreted “use” to include employing tangible personal property for a given purpose or putting it into service or action. See, e.g., Cowan, 128 S.W.3d at 246 (noting that “since 1973 we have consistently defined ‘use’ to mean ‘to put or bring into action or service; to employ for or apply to a given purpose‘“) (quotation omitted). By authorizing and ordering Waller to use the tear-gas gun and skat shell, Hayes (and, through her, the Department) did just what we have long held to constitute “use“: the Department employed the tear-gas gun and skat shell for a given purpose, or put the tear-gas gun and skat shell into service or action. This is also consistent with precedent from several courts of appeals holding that, by ordering the use of tangible personal property for a given purpose, a governmental unit‘s employee has “used” the property under section 101.021. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 151 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“By giving Jones the drug and directing her to take it for the purposes of quitting smoking and conducting its study, UTMDA put the drug into service and employed it for a given purpose as those concepts are commonly understood.“), cited in McKenzie, 578 S.W.3d at 515–16; Tex. State Tech. Coll. v. Beavers, 218 S.W.3d 258, 267 (Tex. App.—Texarkana 2007, no pet.) (noting that a governmental unit “uses” tangible personal property when it “negligently equips the property,” “puts it into service for use by another with full knowledge of its intended use,” and “instructs the manner of its use“).
Further, holding that the Department‘s actions constitute “use” of tangible personal property comports with the plain language of the statute. We have interpreted “use” under section 101.021 as a “common, everyday word[].” PHI, Inc. v. Tex. Juvenile Justice Dep‘t, 593 S.W.3d 296 (Tex. 2019). As such, our interpretation of “use” is consistent with the ordinary meaning of the word. Compare id. (defining “use” as “to put or bring into action or service; to employ for or apply to a given purpose“), with Use, MERRIAM-WEBSTER‘S COLLEGIATE DICTIONARY (11th ed. 2003) (defining “use” as “to put into action or service” and “employ“). And, as we have noted, the ordinary meaning of “use” includes to “employ,” which means “to make use of” or “to use or engage the services of.” Employ, MERRIAM-WEBSTER‘S COLLEGIATE DICTIONARY (11th ed. 2003). Thus, the plain meaning of “use” does not necessarily require physical manipulation of an object. See Tex. Dep‘t of Criminal Justice v. Campos, 384 S.W.3d 810, 815 (Tex. 2012) (indicating that “[u]sing . . . cameras for surveillance,” as opposed to merely deciding where to place the cameras for future use, constitutes “use” under the Act because doing so “put[s] or bring[s] them into service or employ[s] or appl[ies] them to a given purpose“).
The Act‘s distinction between “use” and “operation” further supports this understanding of “use.” See
The Department argues that our analysis in Annab forecloses the conclusion that the Department “used” the tear-gas gun and skat shell here. In Annab, a deputy constable shot the plaintiff, who sued the county that employed the constable. 547 S.W.3d at 611. The plaintiff argued that the county used the tangible personal property (the firearm) when the constable shot the plaintiff. Id. As we noted in that case, the plaintiff in effect alleged that the county‘s “use” of tangible personal property stemmed from its making “the firearm available to” the deputy constable by providing general authorization for his use of the firearm. Id. at 613. On those facts, we held that the plaintiff‘s allegation that the county generally “enabled, authorized, or approved [the deputy constable‘s] use of the firearm [did] not amount to an allegation that the county used the firearm.” Id.
But Annab is readily distinguishable from this case. Critically, in Annab, the county gave no instruction or order to the deputy constable regarding the use of the
B. Riot Exception
Although Rangel‘s claims against the Department fall within the scope of
Under the riot exception, the Act‘s immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.”
The parties dispute whether a riot existed here. Rangel argues that the circumstances did not constitute a riot under the ordinary meaning of the term. Further, Rangel asserts that, even if the circumstances could constitute a riot, a factual dispute remains as to whether there was a riot, thereby requiring that the factfinder resolve the issue. The Department disagrees with both of Rangel‘s arguments, contending that the undisputed jurisdictional facts establish a riot as a matter of law.
Resolution of this issue turns on the meaning of “riot.” The Act does not define what constitutes a riot, so we interpret the term according to its ordinary meaning, see
To determine a term‘s ordinary meaning, we may also “consider the term‘s usage in other statutes, court decisions, and similar authorities.” Tex. State Bd. of Exam‘rs of Marriage & Family Therapists v. Tex. Med. Ass‘n, 511 S.W.3d 28, 35 (Tex. 2017). To that end, the Penal Code provides its own definition of “riot” in making it a criminal offense to knowingly participate in one.
While we agree that the Act does not expressly import the Penal Code‘s definition of “riot,” that definition does provide us guidance insofar as it is consistent with the term‘s ordinary meaning. We have noted that the purpose of the riot exception is, in part, to exclude liability for any injuries occurring as a result of law enforcement efforts to control riots. State v. Terrell, 588 S.W.2d 784, 786–87 (Tex. 1979). In determining whether circumstances constitute a riot, law enforcement officials necessarily rely on the Penal Code‘s definition. Thus, in line with the riot exception‘s purpose, the Act precludes a waiver of sovereign immunity when a law enforcement official responds to a “riot“—again, at least as far as the Penal Code‘s definition is consistent with the ordinary meaning of the term. See id.
The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.”
The Department argues that, rather than focusing on the ordinary
Based on the “undisputed evidence of jurisdictional facts,” Miranda, 133 S.W.3d at 226, the circumstances here constituted a “riot” as a matter of law. To be clear, an inmate‘s noncompliance with official orders, by itself, does not necessarily constitute a riot. Nor do threats between inmates necessarily constitute a riot. But the facts here go beyond noncompliance and threats. Both groups of inmates refused to return to their bunks for almost an hour despite Department employees explicitly ordering them dozens of times over that span to rack up. Inmates from each group threatened each other throughout this time, yelling at each other, making violent gestures to each other, and stating that, regardless of whether they racked up, there would be a fight between the groups. The groups each consisted of thirteen inmates, resulting in multiple calls for backup. As an interim step, Waller and other Department employees displayed the 37mm tear-gas gun as a show of force for over thirty minutes. After being authorized and instructed to use the tear-gas gun, Waller also warned the inmates that he would fire it if they refused to comply, ordering them to return to their bunks four more times before firing. Meanwhile, the other Department officials in the dormitory repeatedly ordered the inmates to rack up. Despite those measures, the inmates still did not comply and continued to threaten each other. Taken together, the facts amount to a riot.7 And as no evidence raises a material question as to these facts, we hold that, based on the totality of circumstances, a riot existed as a matter of law.
Rangel argues that the circumstances here did not constitute a riot because of the length of time during which the events unfolded. Rangel asserts that the protracted nature of the incident afforded the Department employees time to deliberate, as evidenced by Hayes‘s and Waller‘s discussion before she authorized the tear-gas gun‘s use. But the duration of an event does not necessarily undermine whether there is an immediate threat. Here, tensions generally continued to heighten in the prison dormitory for almost an hour, with the inmates—grouped into opposing factions of thirteen members each—continuously
Because Rangel has failed to provide any proof that would “raise a fact question on the jurisdictional issue” of whether there was a riot, we conclude that the riot exception applies as a matter of law. Miranda, 133 S.W.3d at 228. Accordingly, the Tort Claims Act does not waive the Department‘s immunity.
IV. Conclusion
Although under the Tort Claims Act the Department used the tear-gas gun and skat shell when it authorized and instructed Waller to use them for a given purpose, we hold that the Act‘s riot exception applies as a matter of law and forecloses waiver of the Department‘s immunity. Accordingly, we reverse the court of appeals’ judgment and dismiss Rangel‘s claims against the Department for lack of jurisdiction.
Debra H. Lehrmann
Justice
OPINION DELIVERED: February 7, 2020
Notes
from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others . . . .
- For the purpose of this section, “riot” means the assemblage of seven or more persons resulting in conduct which:
- creates an immediate danger of damage to property or injury to persons;
- substantially obstructs law enforcement or other governmental functions or services; or
- by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.
- A person commits an offense if he knowingly participates in a riot.