Opinion issued November 3, 2015




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00004-CV
                           ———————————
 NIKKI SIDES INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
                THOMAS MIDDLETON, Appellant
                                       V.
        TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee


                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 14-DCV-212749


                         MEMORANDUM OPINION

      In this wrongful death suit, we determine whether the conduct alleged falls

within the Texas Tort Claims Act’s waiver of governmental immunity. Nikki Sides

sued the Texas Department of Criminal Justice (“TDCJ”) under the Act, alleging

that its negligence contributed to the death of Thomas Middleton, Sides’s son.
Middleton committed suicide while in TDCJ custody. Sides also sought declaratory

relief for alleged violations of Middleton’s constitutional rights.

        The trial court granted TDCJ’s plea to the jurisdiction based on governmental

immunity and dismissed the case with prejudice. On appeal, Sides contends that she

alleged sufficient facts to establish a waiver of governmental immunity as a matter

of law or, alternatively, that the trial court erred in denying Sides an evidentiary

hearing or leave to amend her pleadings in response to TDCJ’s plea to the

jurisdiction. Finding no error, we affirm.

                                     Background

        In February 2012, Thomas Middleton was an inmate housed in TDCJ’s

Beauford H. Jester IV Unit, a psychiatric facility. During an afternoon check of a

recreational dayroom restroom, TDCJ guards discovered Middleton hanging by his

neck from a handrail in a toilet stall, unresponsive. Middleton was later pronounced

dead.

        In her suit, Sides alleges that TDCJ was negligent in (1) constructing a privacy

wall around the restroom area of the dayroom that was too high, (2) providing him

with a hooded sweatshirt with a drawstring, and (3) failing to modify the toilet

handrail to prevent suicides.

        TDCJ filed a plea to the jurisdiction, asserting that the trial court lacked

subject matter jurisdiction over Sides’s claims because her pleadings failed to


                                            2
establish a waiver of TDCJ’s immunity under the Tort Claims Act. The trial court

granted the plea and dismissed the case.

                               The Texas Tort Claims Act

      Sides complains that she has pleaded allegations sufficient to establish a

waiver of TDCJ’s immunity under the Act, because Middleton’s death was caused

by a condition or use of tangible property under TDCJ’s control. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2) (West 2011).

A.    Standard of Review

      We review a trial court’s ruling on a plea to the jurisdiction de novo if, as here,

the jurisdictional facts are undisputed. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

In a suit against a governmental unit, a plaintiff must affirmatively demonstrate

subject-matter jurisdiction by alleging a waiver of governmental immunity. Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To do so, a

plaintiff must allege facts that affirmatively establish subject-matter jurisdiction.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of

Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no

pet.). In determining whether a plaintiff has satisfied her burden, we construe the

pleadings liberally in her favor; we deny the plea if the alleged facts demonstrate




                                           3
jurisdiction to hear the case. Miranda, 133 S.W.3d at 226; Smith v. Galveston Cty.,

326 S.W.3d 695, 697–98 (Tex.App.—Houston [1st Dist.] 2010, no pet.).

B.    Analysis

      Governmental immunity protects the State and its agencies and officials from

lawsuits for damages. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.

Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006).

In Texas, a governmental agency is not liable for the torts of its officers unless a

constitutional or statutory provision waives this immunity and permits a suit to go

forward. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177

(Tex. 1994). The Texas Tort Claims Act is one such statutory provision. It waives

immunity for “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.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021(2).

      1.     Use of Tangible Personal or Real Property

      First, we examine whether Sides has alleged a “use” of tangible personal

property sufficient as the Act defines it. The TDCJ does not dispute that Middleton

used his sweatshirt, the privacy wall, and the handrail in connection with his death,

but argues that Sides has failed to allege that any TDCJ actor used these objects to




                                          4
contribute to Middleton’s death. Instead, TDCJ observes, Sides alleges that TDCJ

personnel negligently afforded Middleton the means to use them.

      Under the Act, a governmental entity does not “use” property by allowing

someone else to use it and nothing more; rather, “use” as the Act defines it is limited

to a governmental actor’s use of property. San Antonio State Hosp. v. Cowan, 128

S.W.3d 244, 245–46 (Tex. 2004). Nor does the non-use of property waive immunity

under the Act. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–89

(Tex. 2001) (holding hospital’s failure to diagnose and treat an illness to be a non-

use of property for which governmental immunity was not waived).

      Cowan presented the Texas Supreme Court with facts similar to those found

here. In that case, a government-operated hospital returned a patient’s suspenders

and walker to him after his involuntary commitment. Cowan, 128 S.W.3d at 245.

The patient used the suspenders and walker to commit suicide. Id. The Texas

Supreme Court held that immunity had not been waived under the Act, rejecting the

plaintiff’s contention that the hospital had “used” the patient’s suspenders and

walker by allowing the patient to use them. Id. at 246. Following Cowan, we hold

that the trial court properly concluded that Sides has failed to allege a waiver of

governmental immunity based on the “use” of tangible or real property.




                                          5
      2.     Condition of Tangible Personal or Real Property

      Second, we examine whether Sides has alleged a defective condition of

tangible personal or real property.      Sides contends that because the hooded

sweatshirt, the privacy wall, and the handrail lacked safety features that would

discourage suicide attempts, their defective condition caused Middleton’s death, and

immunity is waived. In particular, she claims that the sweatshirt should not have

had a drawstring, the privacy wall should have been lower, and the handrail should

have had a metal block so that objects could not be tied to it.

      Sides relies on cases in which courts found a waiver under the Act because

the condition of the government property lacked an integral safety component and

this defective condition contributed to the plaintiff’s injury. See, e.g., Lowe v. Tex.

Tech Univ., 540 S.W.2d 297 (Tex. 1976); Overton Mem’l Hosp. v. McGuire, 518

S.W.2d 528 (Tex. 1975). Sides is correct that the lack of an integral safety

component in government property that causes a plaintiff’s injuries can be sufficient

to allege a waiver of immunity. Rusk State Hosp. v. Black, 392 S.W.3d 88, 99 (Tex.

2012); Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584–85 (Tex. 1996). But

necessary to that waiver, the allegation must be one in which the plaintiff put the

property to its intended and ordinary use. Black, 392 S.W.3d at 99; see also Dallas

Cty. v. Posey, 290 S.W.3d 869, 872 (Tex. 2009) (per curiam).




                                          6
       Sides does not allege that Middleton used the drawstring, the handrail or the

privacy wall for its intended and ordinary purpose. A government actor waives

immunity by providing allegedly dangerous property only if the property poses a

hazard when put to its intended and ordinary use by the plaintiff. Rusk, 392 S.W.3d

at 98–99; Posey, 290 S.W.3d at 872. In Posey, the Texas Supreme Court was asked

whether a county government waived immunity by providing a telephone with

exposed wires; the plaintiff’s son used the wires to hang himself. Posey, 290 S.W.3d

at 870–71. The plaintiff contended that the county should have provided a cordless

telephone, and that the corded phone’s condition caused her son’s death. Id. at 871.

In rejecting this argument, the Court reasoned that the intended and ordinary use of

a telephone cord is not to hang oneself. Id. Similar to the telephone cord in Posey,

when a drawstring and handrail are used in their intended manner, they do not

present the risk associated with Middleton’s death. Accordingly, we hold that the

trial court correctly concluded that Sides’s pleadings fail to establish a defective

condition leading to Middleton’s death.

      3.      Pleading Amendments

      Finally, Sides argues that the trial court erred in denying leave to amend her

pleadings to establish waiver of immunity before it dismissed her case. A trial court

has        discretion      to     determine        whether       a     jurisdictional

determination     should    be   made     in   a   preliminary   hearing   or   after


                                           7
further development of the case. City of San Antonio v. KGME, Inc., 340 S.W.3d

870, 874 (Tex. App.—San Antonio 2011, no pet.). But when the evidence raises a

fact question regarding a jurisdictional issue, a trial court cannot grant the plea based

on the pleadings. C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 395 (Tex. 2007).

On the other hand, when the pleadings demonstrate an incurable jurisdictional

defect, then a trial court may grant the plea to the jurisdiction as a matter of law. Id.;

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

       Here, it is undisputed that Middleton hanged himself from a handrail behind

a privacy wall with the drawstring of a TDCJ-issued sweatshirt. The only question

is whether these undisputed facts are sufficient to allege that Middleton’s death was

caused by a condition or use of property by a governmental entity. TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021. Because no dispute existed as to the relevant facts,

the trial court properly determined that it lacked jurisdiction as a matter of law; thus

we hold that the trial court did not abuse its discretion in denying an evidentiary

hearing or in refusing to afford an opportunity to amend.

        Claim for Declaratory Judgment under the Texas Constitution

      Lastly, Sides asserts a claim for declaratory judgment on the basis that TDCJ

violated Middleton’s rights under provisions of the Texas Constitution that prohibit

cruel and unusual punishment and the deprivation of life or liberty without due

process. TEX. CONST. art. I, §§ 13, 19. She contends that sovereign immunity does


                                            8
not protect a state agency from suit for declaratory relief for a constitutional

violation. In support of her position that sovereign immunity does not shield state

agencies from suits for declaratory and equitable relief for constitutional violations,

Sides cites City of Beaumont v. Bouillion. 896 S.W.2d 143, 149 (Tex. 1995).

Bouillion involved a claim of wrongful discharge by former officers of the Beaumont

Police Department. Id. at 144. The plaintiffs argued for recognition of an implied

cause of action for damages for violations of the Texas Constitution. Id. at 147. The

Texas Supreme Court declined to recognize the existence of a “constitutional tort”

remedy. Id. at 149. While the court observed that the government may be sued to

enjoin future unconstitutional government action, we do not read Bouillion to

establish a waiver of immunity in declaratory judgment actions connected with

claims that otherwise fall within the Tort Claims Act. While a plaintiff may sue state

officials for injunctive relief through an ultra vires claim, City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009), state agencies themselves are immune against

declaratory judgment actions absent a waiver of their immunity. Tex. Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam) (holding that state

agencies are immune from suit under the Uniform Declaratory Judgments Act unless

immunity is waived by statute).

      Certain narrow exceptions to sovereign immunity exist for declaratory

judgment suits. These include suits challenging the constitutional validity of a


                                            9
statute, TEX. CIV. PRAC. & REM. CODE ANN. § 37.006 (West 2011), and suits under

causes of action created by the Texas Constitution itself, Frasier v. Yanes, 9 S.W.3d

422 (Tex. App—Austin 1999, no pet.). However, Sides has neither challenged the

validity of a statute nor cited a constitutionally-derived private cause of action.

Because Sides has not directed us to a provision waiving immunity, we conclude

that TDCJ is immune to her claims under the Texas Constitution.

      Sides responds in her reply brief that TDCJ has waived its argument for

dismissal of her constitutional claims by failing to address these claims in its

briefing. A lack of subject matter jurisdiction, however, constitutes fundamental

error that cannot be waived. Whitley, 104 S.W.3d at 542; Tex. Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993).




                                         10
                                    Conclusion

      We hold that Sides’s pleadings do not establish a waiver of TDCJ’s immunity

under the Tort Claims Act. Accordingly, we affirm the order of the trial court

granting TDCJ’s plea to the jurisdiction.




                                                 Jane Bland
                                                 Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




                                            11
