*1 juvenile testified to the same at trial. Because court that he has taken the child by party opponent admission is not custody hear- into and to inform the par same say, the trial court did not err in overrul- of ties the reason for seizure. Tex. Fam. 52.02(b) (Vernon ing appellant’s objection and admitting Supp.2000). Code Ann. 52.02(b) statement into evidence at trial. comply Failure to with section subsequent renders a confession inadmissi Accordingly, we appellant’s overrule State, 267, ble. See v. Gonzales S.W.3d through ninth points fourteenth of error 270-71 (Tex.App.-Houston [1st Dist.] and her seventeenth of point error. C.R., pet. granted); In re error, In her point appellant fifteenth of 785-85 (Tex.App.-Austin contends her oral and written statements denied). illegally were obtained because she was instruction, Appellant’s requested not detained an office that was a desig- however, jury did not instruct the to con juvenile processing nated office as re- sider the her 52.025(a) voluntariness of statements quired by family of the 52.02(b) in light of the section requirement however, Appellant, code. pre- did not Instead, to notify parent. appellant’s serve this claim on appeal because she did requested instruction addressed provi complain any violations of section sions of section of the family 51.095 code family 52.025 of the code in her motion to govern juvenile’s the admission of a suppress or at hearing on the motion. written and oral ap statements. Because complaint Because her appeal on does not pellant’s objection trial does not comport below, comport with her contentions she with her argument appeal, any error is Turner, waives review. at State, Penry waived. v. Davis, 11. Accordingly, ap- S.W.3d at (Tex.Crim.App.1995). Appellant’s pellant’s fifteenth point error is over- eighth point of error is overruled. ruled. error, Finding no reversible we affirm op Jury Submission Voluntariness Issue to judgment of the court below. error, eighth point ap pellant contends the trial erred in submitting her requested charge on

the voluntariness of the confession to the jury. When the issue of voluntariness aof evidence, confession is raised DEPARTMENT MENTAL TEXAS OF judge trial appropriately shall instruct the HEALTH AND MENTAL RETAR jury, generally, pertaining on the law DATION, Texas, The State of such statement. Tex.Code Crim. Proc. Hospital, Wichita Falls State (Vernon 1979). 38.22, § Ann. art. How Capacity Don Gilbert in his Official ever, requested before the instruction is Depart as Commissioner of Texas required, some evidence must be present ment of Mental Health and Mental jury ed which raises the issue of Retardation, Appellants, State, Butler

voluntariness. (Tex.Crim.App.1994). LEE, Appellee. Robin Appellant testimony contends the No. 2-99-145-CV. of her mother and grandmother that the police notify they did not them when took Texas, Appeals Court of appellant custody into raised a fact issue Fort Worth. concerning appellant’s the voluntariness of Feb. oral and written statements. Section 52.02(b) family requires po code officer promptly notify

lice the child’s parent designated and the official by the *3 TX, Cornyn, Atty. Andy Gen. of

John Gen., Taylor, Atty. Gregory First Asst. S. Coleman, Eads, Deputy Attys. Linda S. Hunter, Litigation, for Toni Chief Gen. Div., Pinson, B. Litigation General James Eiserloh, Plotts, Peter B. Asst. Laurie R. Gen., Eskow, R. Attys. Lisa Asst. Sol. Gen., Austin, Appellants. Falls, Douglass, Appel- Wichita

Gene lee. C.J.; LIVINGSTON, CAYCE,

Before J.; RICHARDS, J., Sitting by Assignment.

OPINION

CAYCE, Justice. sexually Lee was as- Appellee Robin patient while HIV-positive saulted under Falls she was the care Wichita against ap- Hospital. State She filed suit Act pellants under the Texas by a alleging injuries that her were caused tangible personal prop- use of condition or Falls erty employees because of Wichita to lock the interior Hospital failed locking to her room and to door the wom- separating devices on the door hospital. wings en’s and the men’s damages “pa- under the Lee also seeks of the Texas rights” provision tient’s bill of abuse, neglect, Safety Health and Code for plea exploitation.2 Appellants filed im- jurisdiction sovereign to the based trial denied.3 munity which the 3.See See & Ann. Ann. Tex.Civ.Prac. Rem.Code Tex.Civ.Prac. & Rem.Code 101.021(2) (Vernon 1997). (Vernon 51.014(a)(8) § Supp.2001). § 321.002 Safety § Tex.Health & Code Ann. (Vernon Supp.2001); also see Tex.Ad- 404.154(24) (2000). min.Code the Texas Health 321.002 of interlocutory con- appeal, appellants this bill “patient’s denying erred Code for violations that the trial court tend from mis- against appel- “freedom specifically, because Lee’s plea rights”; their sover- jurisdietionally abuse, barred treatment, exploita- lants is neglect, immunity. eign tion.” alleged hold that Lee has We jurisdic- filed Appellants Act action under the Tort Claims cause of allege tion, that Lee had failed asserting hospital unlocked doors did because the under support a claim that would facts injury, but cause Lee’s proximately Act of the Tort Claims that made merely furnished the condition immunity deprived and that injury possible. resulting the assault jurisdiction subject matter trial court of *4 has legislature further hold that the We patient’s the for violations of over her suit immunity from suit not waived the State’s the The trial court denied rights. bill of rights. of the for violations only plea “lack[s] the plea stating will, therefore, and render reverse We merit.” ap- judgment dismissing against Lee’s'suit pellants. of Review Standard Background Facts ruling a trial court’s review We 22, 1994, sexually April On Lee was jurisdiction de novo.5 on a to by HIV-positive patient while

assaulted exists, jurisdiction determining whether Falls she was under the care of Wichita allegations pleadings the accept we the (the a mental Hospital hospital) for in favor of the true and construe them as hypersexual to be disorder caused her consider evidence must also pleader.6 We filed promiscuous. subsequently She when it is neces jurisdiction to relevant against appellants Department suit Texas issue jurisdictional to sary resolve and Mental of Mental Health Retardation raised.7 (MHMR), Texas, hospital, the State of Gilbert, of MHMR and Don Commissioner suit,

(collectively, Lee appellants). Immunity Sovereign of action under section alleged a cause unless immunity, Sovereign Act of the Texas Claims Texas, waived, its the State of protects lock the based on the failure to and its officials from lawsuits agencies, locking door to her room and to legislative consent sue damages, absent devices on the doors between men’s im doctrine of The State.8 hospital, which wings and women’s of the munity principles: embraces two constituted both a misuse of she contends liability.9 from from suit tangible and a defective condition against suit bars a lawsuit Immunity from injuries. Lee caused her proximately expressly State, legislature unless of action under section alleged also cause 547, Blue, 321.002; 555 34 S.W.3d § 25 7. Bland I.S.D. Code Ann. 4. Tex.Health & 404.154(24). (2000). Tex.Admin.Code Sunnyvale, Mayhew v. Town of 401, Univ., Sign So. 8. Fed. v. Tex. denied, 922, (Tex.1998), 526 U.S. rt. 928 ce 1997); (Tex. Arlington v. Tex. at Univ. 405 2018, 1144, 1030 S.Ct. 143 L.Ed.2d 119 Bishop, 997 S.W.2d - Fort (1999). denied). pet. Worth Bd., Control Bus. v. Tex. Air Ass'n Tex. Pac. R.R. Sign, S.W.2d at Mo. 1993); 9. Fed. City Sagi S.W.2d Dist., Navigation Carter, v. Brownsville (Tex.App.- Co. 2-3 naw (Tex.1970). filed). Worth Fort that, Act, are also instructed we its to the suit.10 Absent gives consent Act immunity under the is while waiver of consent, the trial court does not have such construed, con- this liberal liberally to be subject jurisdiction matter to hear legis- must be balanced with struction ease.11 only to a waiving immunity lative intent contrast, immunity from lia By degree.20 limited judgments from bility protects the State recognize that important is [I]t expressly given if has legislature even in the intended the waiver Legislature nei legislature The consent suit.12 limited, unlimited.... Act to be liability by grant ther creates nor admits Immunity to be sued.13 ing permission immunity in the ... waiver of [T]he defense, an affirmative liability is not, Act and was not Tort Claims jurisdictional issue.14 be, complete. Arguments intended to Act that would applications legislature may consent becoming in waiver essentially result its liability by legisla statute or rejected therefore be absolute must “It is a well-established tive resolution.15 pur- contrary to the Act’s fundamental waive the Legislature rule that for the pose.21 do sovereign immunity, it must so State’s *5 us, guide rules we will these With language.”16 by unambiguous clear and Act and examine the mindful, however, that the rule We are if they at apply, Health and Code sovereign immunity requiring a waiver of all, appellants to against to Lee’s claims cannot be unambiguous to be clear and of whether the use or condition determine rigidly so that the almost certain applied proximately alleged by Lee property legislature disregarded.17 is intent of the legis- injuries, and whether caused polestar of “Legislative intent remains lan- by unambiguous lature has clear Thus, if a stat statutory construction.”18 immunity for waived guage pur no reasonable doubt of its ute leaves rights claim. Lee’s clarity, require perfect we do not pose, sovereign im determining even in whether Act Tort Claims waived.19 munity has been provisions the relevant of Under Act, unit determining governmental whether the Tort Claims in this is liable for: under the Tort state from suit has been waived Jones, 1995); (Tex. Branch at Univ. Tex. Med. Transp. v. 8 S.W.3d 292 Dep't 10. Tex. of of York, 175, (Tex. 636, (Tex.1999); S.W.2d 177 Sign, at 871 Fed. Galveston 638 405. Jones, at 638. 11. Mun. Monsanto Co. v. Cornerstones 17. See 937, (Tex.1993); Dist., S.W.2d 939 Util. 865 Id.; Sign, 951 S.W.2d at 405. 12. Fed. .T.S., Attorney's County v. J Dist. Harris Office 572, (Tex.1991). S.W.2d 574 807 405; see also Sign, 13. Fed. 951 S.W.2d at 107.002(b) § & Rem.Code Ann. Tex.Civ.Prac. LaPorte, City 898 S.W.2d at 292 18. of (Vernon 1997) (“A granting per- resolution any not waive to extent mission to sue does Id. liability.”). County Mental Mental Health & 20. See Dallas Jones, S.W.3d at 638. 8 339, Bossley, 341- S.W.2d Retardation v. 968 (Tex.) (history passage of Act’s shows 42 Pac., 405; at Sign, S.W.2d Mo. 15. Fed. 951 waiver purpose” is limited its "fundamental S.W.2d at 814. 453 denied, 1017, immunity), 525 U.S. cert. of (1998). 541, 142 L.Ed.2d 450 S.Ct. State, Duhart 1980); Sign, 951 S.W.2d at see also Fed. Barfield, S.W.2d City LaPorte v. of relationship causal (2) there must be close and death so injury personal prop or use of the between the condition by tangible a condition or use of caused This is resulting injury.25 govern- erty if the and the property or real personal majority would, by the of also the rule followed private unit were it a mental accord- our sister courts.26 person, be liable to the claimant law.22 ing to Texas case, complains Lee of In this an actionable claim under section To state the interi- property leaving a use of both — 101.021(2) or misuse of upon based use a con to her room unlocked —and or door injury or death tangible property, personal locking device of dition —no wing the condi proximately leading must be caused from the men’s the door Neither tangible property.23 wing hospital. tion or use women’s of requires injuries requirement proximate cause can be said to have caused Lee’s “Property does prope more than mere involvement of the from the sexual assault. if it more than degree injury of involve not cause does no rty.24 Although the condition that makes the difficult for courts to discern furnish the ment cases, permit The unlocked doors holdings possible.”27 certain the rationale and room, entry into Lee’s supreme court decisions make clear that ted the assailant’s Univ., 26. See Scott v. Prairie View A & M 22. Tex.Civ.Prac. & Rem.Code Ann. (emphasis supplied). [1st - Houston denied) (use pet. money pay Dist.] (the negli 968 S.W.2d at 342-43 sexu for hotel room school counselor who gent conduct “must involve 'some condition ally cannot constitute use of assaulted student tangible property”). or some use' of "Use” of proximately injury); caused property that tangible property put bring "[to] means or at Galveston v. Univ. Tex. Med. Branch service; property] into or to em [the action (Tex.App Hardy, 2 S.W.3d . -Hous ploy apply given purpose.” for or Kerr denied) (hospital's ton [14th Dist.] *6 Clark, 582, Hosp. ville State v. 923 S.W.2d 584 monitoring equip improper use of cardiac (Tex. 1996). "Use” also includes "misuse” of death); directly patient’s resulted in San ment County, property. 946 See Smith v. Tarrant Koehler, Hosp. v. 981 S.W.2d Antonio 496, 1997, (Tex.App. S.W.2d 501 Worth 32, 1998, - Fort pet. (Tex.App. Antonio de 36 - San denied) (op. reh’g). writ on nied) (hole hospital proximate in fence not patient’s sexual assault at distant cause location); Bossley, 968 S.W.2d at 343. Doe, S.W.2d Lamar Univ. v. 971 191, 1998, pet.) (Tex.App. no 196 - Beaumont Compare Robinson v. Cent. Tex. MHMR (use dormitory did not room cause chil Ctr., 169, (Tex.1989) (hospi 780 S.W.2d 171 by injuries which were caused room’s dren’s provide epileptic patient tal's failure to life paid photographed occupant who them to be preserver drowning), v. was cause of his Lowe Marroquin explicit poses); v. in sexual Life Univ., 297, Tex. Tech 540 S.W.2d 300 Servs., Mgmt. 927 S.W.2d Ctr. MH/MR 1976) (school coach's allow student failure to 1996, 228, (Tex.App. Paso writ 232 - El injuries), to use knee brace resulted in (day w.o.j.) center’s failure to dism’d McGuire, Hosp. Overton Mem’l 528, v. protect supervise pa security to devices (Tex. 1975) (patient's injuries from 529 under tients was not actionable Act). by pro falling proximately bed caused out of County v. Travis Hous. But Michael cf. rails), Bossley, viding bed without with 968 909, Auth., 914 - Austin (hospital employee’s to S.W.2d at 343 failure (although recognizing need pet.) no patient’s too attenuated from sui lock doors property and close causal connection between Clark, cause), proximate 923 cide to be that defective fence allow injury, court held (failure prescribe S.W.2d at 586 certain inju ing dogs escape proximately caused patient form of medication did not cause passers-by). ries to wife), estranged murder his and Kassen (Tex.1994) Hatley, (hospi 14 S.W.2d at see Union give patient did not 968 tal’s failure to medication Allbritton, suicide). S.W.2d Pump Co. v. cause her But see Salcedo v. El Paso Dist., (Tex.1983) (Tex. 1995); Dep’t also Bush v. Tex. Hosp. S.W.2d see Servs., Regulatory pa (holding hospital proximately caused Protective & that (Tex .App. misreading Worth by death electrocardio tient’s - Fort denied). gram). hospital but did not cause the sexual assault result- the failure of the staff to restrain ing injuries. Although in her the assail- they him once learned he was still entry ant’s through the unlocked doors suicidal.30 part sequence was of a of events that analogous This case is also to Amador assault, ended the sexual the use and Hospital31 San Antonio State and Koehle unlocked condition of the doors were too Amador, unsupervised patient r.32 injuries attenuated from Lee’s to be said sexually by was assaulted several other to have caused them. The substance true complaint of Lee’s that the sexual as- patients on the hospital grounds. while caused, sault was the condition or patient The that by unlocking claimed doors, hospital use of the but the failure permit go doors to her to unsuper outside hospital protect staff to her from vised, hospital property misused they her assailant when knew that she was resulted in her sexual assault. Relying hypersexual and and that promiscuous Bossley, the court held that although the patients male had exploited hypersexu- permitted patient’s unlocked doors un ality past; conduct that does not fall exit, supervised the doors were too attenu within the Act’s limited waiver of immuni- ated from the sexual assault to have ty. injuries.33 caused the As Boss- closely facts this case resemble ley, the court concluded that the real sub Bossley. the facts in In Bossley, patient a patient’s complaints stance of the escaped hospital from the and committed hospital property, misused but patient suicide. The was able to exit hospital negligently by that the acted fail through the locked double doors of the ing properly evaluate and restrain the hospital by following hospital employee patient.34 who had self-locking failed to close the interior door and then by pushing that Koehler, patient female escaped employee employee aside after the had hospital premises companion with male unlocked the exterior door.28 The court through large hole in the fence. held that there was no waiver companion patient The male brought the in that case because neither the use of to a distant he boarding house where sexu- door) property (unlocking the outer nor ally patient assaulted her. The filed (the the condition of unlocked against hospital, alleging that the hole *7 door) patient’s inner caused the suicide.29 in the a hospital’s prem- fence constituted court, According patient’s to the death no holding ises defect.35 that there was geographically, temporally, was too distant immunity, waiver of the court noted the causally open and doors at causation than in was even more remote hospital said to have caused his be Bossley injury because the occurred at a death. that determined significant geographically distance —both “real substance” plaintiffs complaint temporally and caused, Bossley that was the death was —from Citing Bossley, fence.36 the court held by a condition or use of which Act, that to fall a within the required bring was within the immunity, by plaintiffs injury directly Act’s limited waiver of but have result- must Amador, 28. 968 S.W.2d at 340-41. 33. S.W.2d. at 256.

29. Id. at 343. 34. Id. at 257. 30. Id. Koehler, 35. 981 S.W.2d at 34. 254-58 - San denied). Antonio Id. at 36. 32. 981 S.W.2d at 33-37. assertions, hospital trary to Lee’s property.37 condition of the ed from the integral to lack an this case cannot be said patient’s sexual assault was Because the interior because its safety component in the the direct result of the hole twenty-four fence, kept locked doors were not patient the court held the failed day46 a cause.38 hours proximate establish reviewing allegations Lee’s analogizes this case to After incorrectly Lee McGuire, in the record relevant court held the evidence where the we by appellant, raised by immunity section issue immunity that was waived not asserted a claim conclude that Lee has plaintiffs for a claim that he 101.021(2) of the that injured hospital when he fell out of his falls within was We, therefore, Act.47 sustain equipped side Tort Claims bed because it was not with McGuire, however, plain- appellants’ first issue. rails.39 In directly immediately tiffs was Safety Code Health to the absence of restraints on the related however, injuries, side of the bed .40Lee’s ex- legislature that Lee contends causally distant from temporally were immunity from waived pressly the unlocked doors. of the Health and suits based on violations “patient’s rights,” bill of Code’s Lee’s reliance on Lowe41and Robinson42 of the code providing in section 321.00B Lowe, equally misplaced. is the su- by a violation of the patient that a harmed preme court held that care patient’s rights while under the player waived for a claim a football sue” the facility “may of a mental health his coach refused to allow him to wear a and other This facility damages relief. The court in held knee brace.43 Robinson impression. an of first issue was waived for a claim that epileptic young man was allowed to of the Health and Safe- Section 321.002 preserver.44 swim without a life In a sub- MHMR and other state ty requires Code decision, by rule to sequent regulatory agencies “[t]he the court held that health care protect precedential adopt “patient’s rights” value of cases is ... bill these “health, patient safety, rights” plaintiff alleges limited to claims which a mental inpatient care of an provided property that a state actor has under the facility.48 provides Section 321.003 integral safety component lacks an health facility” or “mental integral compo- and that the lack of this that a “treatment facility” right that violates plaintiffs injuries.”45 nent led to the Con- health integral safety component un- where Id. lack of condition that led to locked doors furnished suicide). McGuire, 518 S.W.2d at 529. that, suggests the alterna- 47. The dissent tive, hearing on the we should remand for *8 Id.; Bossley, at 343 40. see also 968 S.W.2d oppor- jurisdiction to Lee an plea to the allow grounds). (distinguishing McGuire on same support- tunity present additional evidence ing jurisdiction over her Tort trial court 41. 540 S.W.2d at 298-301. Bland, at Act claim. See required to (holding that trial court is 42. at 169-71. support plea in consider relevant evidence appellants, jurisdiction). Neither Lee nor to however, Lowe, 43. 540 S.W.2d at 300. complained that the trial court have erroneously to consider evidence oth- refused Robinson, 44. at 171. pleadings allegations in Lee’s nec- er than the essary jurisdictional issues to resolve the Clark, 45. S.W.2d at 585. jurisdiction. by appellants’ raised (holding at 343 46. Cf. 321.002(a). § not constitute that failure to lock doors does Ann. Tex.Health & Code facility purports er that offers or to offer adopted pursuant to section 321.002 “is Appellants argue that the any person under the care of the treatment.”53 liable” violation, incorporation of these definitions into the facility by who is harmed the and clearly unambiguously waives “may harmed sue” the statute person that the from suit for viola- facility and other relief.49 State’s damages rights. tions of We Resulting § for Harm 321.003. Suit disagree. From Violation Duhart, Supreme Court of Texas (a) facility A treatment or mental worker’s providing construed a statute health that a facility provision violates compensation highway benefits to state of, under, adopted chapter, or a rule this adopted exemplary that an employees C of Title 7 571.001 et [Section Subtitle damages provision in another law.54 The seq.\ Chapter or 466 is or incorporation court held that of one person receiving liable care or law, more, without provision into another facility in treatment or from the who is unambiguously waive clearly did not harmed as a result of the violation. liability for ex- the State’s from (b) A harmed person who has been damages.55 The court reached emplary relief, injunctive may a violation sue for LaPorte, in City the same conclusion damages, or both.50 forbidding when it construed a statute “a facil Importantly, the terms “treatment an em- person” retaliating against ity” facility” “mental health are not compensation who ployee seeks worker’s statute; rather, in expressly defined that the adop- benefits.56 The court held “ ‘[mjental that provides the statute health in tion of that statute another statute facility’ meaning assigned by has the Sec subdi- “person” political defined to include [of code]” tion 571.003 legis- indication of gives visions no clearer “ facility5 meaning has the as ‘[treatment immunity than did lative intent to waive signed by 464.001 [of code].”51 Section damage pro- adoption exemplary Section defines mental health law con- vision of another into the statute facility “facility operated by Tex [the as a strued Duhart.57 Department of Mental Health and Retardation], a construction agency, Applying Mental federal the rules of subdivision, any person.”52 or followed court Duhart political LaPorte, facility perti City is defined in the we hold Treatment “a 321.001 of parts public incorporation nent of section 464.001 as mere section treatment fa community ... another statute that defines private hospital; or center; to include any cility facility ... or ... oth- and mental health mental health 571.003(12). 321.003(a)-(b). § § 52. Id. Id. (G), (L) (Vernon 464.001(5)(A), 53. Id. (emphasis supplied). 321.003 Section continues as follows: (c) plaintiff prevails Duhart, A who suit under 610 S .W.2d at 742-43. may damages, recover actual in- this damages anguish cluding for mental even if 55. Id. anguish mental is not other than LaPorte, City shown. 898 S.W.2d at 292-93. (d) *9 award under Subsec- In addition to an (c), Hosp. v. plaintiff prevails 57. Id. at see also Kerrville State tion who Fernandez, (con- (Tex.2000) may exemplary under this section recover 15(b) Applica- cluding of State damages attorney that section and reasonable fees. 321.003(c)-(d). expression of intent to Act is clearer tions incorporation” of waive than “mere Act). 321.001(4), (6). law into §Id. Anti-Retaliation Justice, more, LIVINGSTON, concurring and not, facilities58 does without public dissenting. to the legislative manifest a clear intent immunity.59 to waive contrary While Health and of Mental Department Texas legislature’s intent to statute evidences Retardation, Texas, of Wich- Mental State pa actions for violations of the authorize Gilbert, and Don Hospital, Falls ita facili rights against private

tient’s bill of trial court’s denial of appeal the appellants, regulato health care ties licensed state jurisdiction trial court’s plea to the their not, as it ry agencies, statute does sovereign immuni- on their claim of based waive might, clearly express an intent majority’s I concur with ty. While immunity by authorizing such actions rights bill of patient’s conclusion that Indeed, against governmental entities. public enti- to waive failed indi legislative history the statute ties, the ma- disagree I with respectfully that the statute was enacted to ad cates appellee failed jority’s conclusion that reportedly that had occurred dress abuse waiver of sufficient to show allege facts private mental health facilities.60 use, nonuse, There or a condi- immunity due to history sug in the nothing property. is statute’s tion of even aware of gest legislature that the Lee, patient, Robin appellants’ I believe in public the existence of similar abuse plead- in her allegations sufficient made Thus, facilities. we hold that the statute jurisdic- trial court’s ings to establish the possesses meaning purpose absent trial her claim and that the tion over immunity.61 Accordingly, waiver of we had waived correctly determined the State appellants’ second issue. sustain immunity. ruling a trial we review court’s When Conclusion jurisdiction look to the we accept in the allegations pleadings sum, we hold that Lee has not stated Additionally, as true.1 them un- against appellants an actionable claim may trial court court has determined the der of the Tort Claims hearing preliminary in a consider evidence Act and section 321.008 of the Health jurisdiction.2 If in order to determine its Safety Code does not waive or provides sufficient evidence plaintiff immunity from suit for violations of the alleges petition facts its sufficient Accordingly, we rights. immunity, dismissal establish waiver dismissing judgment reverse and render jurisdiction inappropriate.3 Un- want of against appellants grounds the suit on the (TTCA) a Act der the Texas jurisdictionally actions are Lee’s personal unit is liable for governmental by sovereign immunity. barred or caused a “condition injury or death if tangible personal or real use of LIVINGSTON, J., would, concurring filed were it a unit governmental be hable to the claimant dissenting opinion. private person, Fernandez, 28 S.W.3d at 6. 58. See Tex.Health & Code Ann. (G), (L), 571.003(12). 464.001(5)(A), §§ Bd., v. Tex. Air Control 1. Tex. Ass'n Bus. 292-96; LaPorte, City 898 S.W.2d at 59. See (Tex. 1993). Duhart, 610 S.W.2d at 742-43. Blue, 34 S.W.3d 2. Bland I.S.D. v. 60. See Private Psychiatric, Abuse, and Substance (Tex. Tex., Senate Medical Rehabilitation Servs. 73rd Servs., & Human Interim Comm. on Health Comm'n (Nov.1992); 3. Tex. Natural Res. & Conserv. Leg. & Senate Comm. on Health White, S.B. Tex. Servs., Analysis, - Fort Bill Human (1993). pet. granted). Leg., Worth 73rd R.S. *10 holdings type of those two cases to the according majority to Texas law.”4 The Citing im- their claims.9 presented the has not waived its facts believes State Clark,10 Hospital under the TTCA because the un- Kerrville State the munity majority Bossley concludes that subse- merely locked doors furnished condition limited the breadth of property pa- quently of the that resulted the Robinson plaintiff alleg- Lowe to where a injury, opposed actually as caus- and claims tient’s property I actor has that ing injury. provided the Because do not believe es state safety an that led property’s integral component the use or misuse must so di- lacks I injury, injuries.11 appellee I dis- believe claimed rectly respectfully cause the exactly Bossley that and therefore would majority’s sent the conclusion on is- require not dismissal. sue one. Appellee’s exact claim set forth response appellants’

In motion for it petition says best: second amended juris- summary judgment and to the diction, appellee claimed that the and to The failure to close secure failure to lock her door or lock the doors for the doors provide locking devices wings sleeping or segregating between the men’s women’s the dormitories areas, well as the failure to lock personal property constituted a misuse Plaintiffs room or her with a meaning provide that falls within section 101.021’s “use,” device, tangible was a misuse of provide locking that the failure to some and real estate and locking personal property device on her door or the doors prop- a defective condition of these separating wings negligent, the was was Plain- erties and was a failure to negligence appellee’s such caused safety proxi- tiff devices ... which damages. question The is whether with damages. mately lock caused Plaintiffs nonuse or misuse of a constitutes property “use” or a condition of the enough majority says this is beyond furnishing goes mere I Bossley compels dismissal. dis- to occur. condition that allowed case, involuntari- agree. Bossley In the an escaped University5 ly-committed patient Tech suicide the Lowe v. Texas case, through an unlocked inner door while court held State leaving building player employee waived when a football was left outer door unlocked as she injured briefly after a coach refused to let Bossley staff chased Hospital him wear a brace.6 And in Robinson exited.12 knee Center;7 mile, Bossley tried to Texas the su about a half where v. Central MHMR freeway. of a waived hitchhike rides on both sides preme court also held the State Bossley handicapped approached, it allowed a As a staff member immunity where jumping into oncom- preserve man a life committed suicide young to swim without cases, Bossley’s parents sued ing of those traffic.13 r.8 both employ- MHMR and other various directly plain led Dallas used or used immuni- had waived injuries. According claiming to the Texas Su ees tiffs’ 101.021(2) Court, should, however, of the TTCA ty limit the under section preme we denied, (Tex.), S.Ct. U.S. cert. & Ann. 4. Tex.Civ.Prac. Rem.Code (Vernon 1997). (1998). L.Ed.2d 450 1976). (Tex. 5. 540 S.W.2d 297 S.W.2d 582 10. 923 Id. at 300. 11. See id. at 585. (Tex. 1989). 780 S.W.2d 169 Bossley, S.W.2d at 340-41. Id. at 171. County & Mental Re- 9. Dallas Mental Health Id. at 341. tardation v. *11 of es, chase and because lengthy after a death was caused

because their son’s (i.e., being timing at Bossley’s fortuitous without unlocking the outer door Jones’s left it un- when someone the front door The trial locking the inner door.14 first locked). Therefore, Bossley is I believe for granted the State’s motion sum court because the from this case distinguishable judgment ground on the of mary temporally, not distant injury here was appellate the court reversed. Howev but causally. geographically, or er, say supreme the court then reversed alleged create a no more than I the facts as ing property does believe the unlocked establishing for basis furnish the condition that makes just than the condi- doors furnished more cannot be to have caused the possible said access to rape; provided tion for the it injury, required by as the TTCA.15 The place it appellee provided also property that both a of court noted use occur, of occurred to all which assault (Jones’s unlocking the outer door without Therefore, I hospital’s property. on the of watching Bossley) condition of affirm the trial court’s denial would (the door) inner did unlocked summary judgment appellants’ motion for actually only pro cause his suicide but immunity under the TTCA on waiver of escape.16 supreme The vided the means jurisdiction to and hold the trial has by distinguishing court continued the facts I Alternatively, would hear those claims. Bossley’s ease from the facts Overton give trial court to remand this case to the Hospital Memorial In McGuire.17 opportunity request parties McGuire, court held that the preliminary hearing pleas on the failure hospital bed jurisdiction in accordance with the su- directly plain with side rails caused the in the preme guidance court’s set forth injuries tiffs when he fell out of that bed.18 case. Bland words, “plaintiffs injury other was im directly mediate and related to the ab bed,”

sence of restraints on the side of the death, opposed Bossley’s that was geographically, temporally, “distant causally from the at Hill open doors Eric Ethel Estell WALTRIP 19 Appellants majority side.” and the be Culver, Appellants, M. Bossley compels lieve dismissal because provided the unlocked doors no more than rape the mere condition that allowed the BILBON CORPORATION disagree. occur. I National Concrete a/k/a Products, Appellee. applying the factors noted When No. 09-00-063 CV. court, Bossley only one can reach the con- unlocked clusion that condition of the Texas, Appeals Court provided just doors more than the condi- Beaumont. rape. rape tion that allowed the took Jan. 2001. Submitted place appellants’ premises, pa- on March 2001. Decided room, spite appellants’ knowl- tient’s edge regarding patient’s promiscuity prior sexual encounters site. premis- killed off patient at id. 18. Id. Id. at 343. 19. Bossley, at

17. 518 S.W.2d 528