                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00402-CV


RODERICK LYDELL BONNER                                            APPELLANT

                                          V.

TARRANT COUNTY, TEXAS                                              APPELLEE

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           FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 342-237971-09



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                           MEMORANDUM OPINION1

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      Appellant Roderick Lydell Bonner, pro se, appeals from the trial court’s

grant of summary judgment on immunity grounds for Appellee Tarrant County,

Texas (the County).      Because we hold that the County did not establish its

entitlement to immunity, we reverse.


      1
          See Tex. R. App. P. 47.4.
                             I.    Background Facts

      Bonner sued the County for injuries he sustained when a chair he sat in at

the Tarrant County jail collapsed. At the time, Bonner was incarcerated in the

jail. Bonner alleged that he went to see a nurse for an evaluation, and she told

him to sit in the chair, which collapsed with him. Bonner asserted that the County

had actual knowledge of the condition of the personal property because a

sheriff’s deputy had broken the chair prior to Bonner’s use of it.

      The County filed a motion for summary judgment raising immunity from

liability under code of criminal procedure article 42.20(a) and under government

code section 497.096. See Tex. Gov’t Code Ann. § 497.096 (West 2012); Tex.

Code Crim. Proc. Ann. art. 42.20 (West 2006). The County attached the affidavit

and excerpts from the deposition testimony of Officer Robert Barham, a detention

officer at the jail. Officer Barham explained how he broke the chair that Bonner

later sat in. The chair was the officers’ chair for the pod at the unit. He sat in the

chair, raised up slightly to scoot the chair forward, and sat back down. When he

sat back down, the back right chair leg “folded out from underneath [him].”

Officer Barham reported the incident to his supervisor, who told him to write a

report and move the chair to the jail’s “multipurpose room.”         Officer Barham

explained in his deposition that the room was used if a fight broke out among

inmates and inmates needed to be temporarily separated. The room was also

used to store supplies.      The room was also used as “the diabetic room.”

According to Officer Barham, “[t]he nurses would go in there and set up shop in


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that room due to the fact that the pod had over 30 some-odd diabetics. And

some nurses would allow the inmates to sit. Some nurses would not.”

        In his affidavit, Officer Barham stated that when the chair collapsed on him,

he was “uninjured at the time except for [my] wounded pride.” He believed his

supervisor would contact the appropriate person to have the chair disposed of

and that even if someone did sit in the chair while it was in the Multipurpose

Room, Officer Barham did not expect the person to be hurt because he was

uninjured when it collapsed on him.

        The County further attached to its motion excerpts from the deposition of

Caroline Davis-Ette, the nurse who was in the Multipurpose Room when the chair

collapsed on Bonner. She testified that she did not notice that the chair was

damaged before Bonner sat in it, nor did she see any notice on the chair that it

was broken. She stated that she did not remember if she instructed Bonner to sit

down.

        Based on this evidence, the County argued it was immune under article

42.20(a) of the code of criminal procedure because it had shown as a matter of

law that its employees did not act with conscious indifference to the safety of

others. It also asserted immunity under section 497.096 of the government code

because it had shown as a matter of law that its employees did not act

intentionally, through willful or wanton negligence, or with conscious indifference

or reckless disregard for the safety of others.




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      The trial court granted the County’s motion for summary judgment without

specifying the basis for its ruling. Bonner now appeals.

                             II.   Standard of Review

      Whether a court has subject matter jurisdiction is a question of law. Tex.

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

government entity challenges the existence of jurisdictional facts, “we consider

relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised.” Id. at 227. “If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction” and must leave resolution of the issue to the fact finder. Id. at 227–

28.   The jurisdictional issue is a question of law, however, if the relevant

evidence is undisputed or fails to raise a fact issue. Id. at 228.

                                   III.   Analysis

      Bonner raises ten issues on appeal. We address only his second issue

because it is dispositive.

A.    Article 42.20 Does Not Provide Immunity to the County.

      Bonner argues in his second issue that article 42.20 of the code of criminal

procedure applies to inmate programs and treatment activities but not to the

circumstances that led to his alleged injuries. Bonner is correct.

      Article 42.20(a) applies to certain categories of government employees

and officials, including employees of a community supervision and corrections

department or a community corrections facility; a sheriff or employees of a


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sheriff’s department; and county employees. Tex. Code Crim. Proc. Ann. art.

42.20(c). Under article 42.20(a), such employees and officials, as well as the

governmental entity they serve, are not liable for damages for acts or failures to

act in connection with a community service program or work program or in

connection with inmate work, educational, or treatment activities. Id.

      Under the article’s terms, it applies only when the complained-of act or

failure to act is in connection with a community service program or inmate

activity. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,

865 (Tex. 1999) (“If the meaning of the statutory language is unambiguous, we

adopt, with few exceptions, the interpretation supported by the plain meaning of

the provision’s words and terms.”).     Here, Bonner was at the jail receiving

medical treatment from a nurse at the time of his injury, not participating in a

community service program, a work program, inmate work, or an educational

activity. The only inmate activity alleged by the County was “treatment activity.”

Although the nurse’s treatment of Bonner could conceivably be categorized as a

“treatment activity” as that term is used in the statute, Bonner did not allege an

injury arising from an act or failure to act “in connection with” such treatment

activity. The act or failure to act he complains of—Officer Barham’s placing the

broken chair in the room without a warning—was not done “in connection with” a

treatment activity merely because the nurse saw Bonner in that room. The room

was not part of a dispensary or medical area of the jail. While the nurse saw

inmates in that room for treatment, the room was also used for storage and for


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separating inmates. Officer Barham placed the chair in the locked room to store

it out of the way before its disposal, expecting his supervisor to see that it was

removed. The nurse did not see inmates in the room until four days later. While

Bonner’s injury had a connection to treatment activity in that the reason he went

into the room with the chair was to see the nurse, Officer Barham’s act of placing

the chair in the room had no relation to the nurse’s eventual provision of

treatment. Thus, article 42.20 does not apply to Bonner’s claim.

B.    Section 497.096 Does Not Provide Immunity to the County.

      Although the bulk of Bonner’s argument under his second issue addresses

article 42.20, his issue references section 497.096 of the government code as

well, and we therefore construe the issue to address that section.2

      Section 497.096 provides

      An . . . employee of a sheriff’s department, county commissioner,
      county employee, [or] employee of a community corrections and
      supervision department . . . is not liable for damages arising from an
      act or failure to act in connection with . . . an inmate or offender
      programmatic or nonprogrammatic activity, including work,
      community service, educational, and treatment activities, if the act or
      failure to act was not intentional, wilfully or wantonly negligent, or
      performed with conscious indifference or reckless disregard for the
      safety of others.


      2
       Recognizing that Bonner is proceeding pro se, we are mindful of our duty
to construe his brief liberally. See Tex. R. App. P. 38.9 (briefing rules should be
construed liberally); Dominey v. Unknown Heirs & Legal Representatives of
Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no pet.); see also
Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 78 n.3 (Tex. App. —Texarkana
2008, pet. denied) (“We review and evaluate pro se pleadings with liberality and
patience.”).


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Tex. Gov’t Code Ann. § 497.096. If section 497.096 applies to a County officer

or employee, the County is likewise immune. See Tex. Dep’t of Criminal Justice

v. Hetzler, No. 12-16-00002-CV, 2017 WL 2665659, at *3 (Tex. App.—Tyler June

21, 2017, no pet.) (mem. op.).

      Like article 42.20, section 497.096 does not apply to Bonner’s claim. He

did not allege damages arising from an act or failure to act in connection with a

programmatic or nonprogrammatic activity. See Doyal v. Tex. Dep’t of Criminal

Justice-Institutional Div., 276 S.W.3d 530, 537 (Tex. App.—Waco 2008, no pet.)

(holding that section 497.096 did not apply to the plaintiff inmate’s claims based

on an injury he received when a cell door was closed on his hand because

nothing in his pleadings indicated that the officer’s alleged negligence was in

connection   with   an   inmate’s    community     service   or   programmatic    or

nonprogrammatic activity).

      The County argues in its motion for summary judgment that this section

applies to any inmate activities. We disagree. Interpreting the plain language of

section 497.096, “inmate activity” must mean something other than anything that

happens in a jail or prison. See State Dep’t of Highways & Pub. Transp. v.

Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (when construing a statute, the

court’s job is to begin with the “plain and common meaning of the statute’s

words” to give effect to the Legislature’s intent) (citations and internal quotation

marks omitted)).     Otherwise the statute would merely provide that county

employees are not liable for damages arising from any act or failure to act in a jail


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or prison. Instead, section 497.096 applies when the act or failure to act that

causes the damages complained of occurs in connection with an inmate activity.

      In this case, that act or failure to act involved the placement of the chair

and the failure to warn of its condition, not Bonner’s medical treatment. Officer

Barham moved the chair because he knew it needed to be disposed of and he

did not want others to sit in it. He therefore moved the chair from the officers’

desk area and into the locked Multipurpose Room, which inmates could not

access without an officer’s permission.     Barham’s placing the chair in the

Multipurpose Room, and his and his supervisor’s failure to warn others about the

condition of the chair, were not in connection with an “inmate activity.”

Accordingly, the section does not provide immunity to the County. We sustain

Bonner’s second issue.

                               IV.   Conclusion

      Having sustained Bonner’s second issue, we reverse the trial court’s

summary judgment for the County and remand this case to the trial court for

further proceedings.

      Bonner filed various motions during the pendency of this appeal.         All

motions not previously ruled on are hereby denied.




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                                        /s/ Mark T. Pittman
                                        MARK T. PITTMAN
                                        JUSTICE


PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DELIVERED: January 18, 2018




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