Opinion issued April 21, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00930-CV
                            ———————————
                    HARRIS COUNTY, TEXAS, Appellant
                                        V.
                      STEPHANIE JO BAKER, Appellee


                    On Appeal from the 295th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-02549


                          MEMORANDUM OPINION

      Stephanie Jo Baker has sued Harris County for negligence based on personal

injuries she allegedly sustained during her post-arrest booking at the Harris County

jail. Harris County filed a plea to the jurisdiction, asserting that Baker’s claims

should be dismissed because they are barred by governmental immunity. The trial
court denied the plea, and Harris County filed this interlocutory appeal. The

county presents two issues, challenging the trial court’s denial of its plea to the

jurisdiction.

      We reverse the trial court’s order denying Harris County’s plea to the

jurisdiction and render judgment dismissing Baker’s claims.

                                   Background

      On January 24, 2012, a deputy with the Harris County Sheriff’s Office

arrested Stephanie Jo Baker for the offense of possession of a controlled substance.

Baker was handcuffed and transported to the Harris County jail for booking.

Baker and the Harris County Sherriff’s Office would offer divergent versions of

what occurred during Baker’s arrest and booking.

      A report, entitled Significant Event Bulletin, was prepared by the sheriff’s

office. The bulletin provided a description of what had occurred at the booking

center. It stated that the deputies had difficulty fingerprinting Baker because she

was intoxicated. The bulletin noted that Baker had difficulty standing; she was

swaying from side to side. After she was finger printed, the deputies handcuffed

Baker with her hands in front of her, rather than behind her, “because she had

trouble balancing herself.”

      When a deputy informed her that she would have to wait a few minutes to be

taken to a restroom, Baker stood up from where she was seated and began cursing



                                         2
at the deputies in the booking room. A deputy sat Baker down, but she stood up

again, continuing to curse at the deputies. A deputy sat Baker down a second time,

but Baker got up a third time, continuing to swear at the deputies. Fearing that

Baker might assault him, “[The deputy] raised his arm in an attempt to stop her and

to maintain distance from him. Due to her intoxicated state[,] [Baker] lost balance

and fell down on her left side between the concrete benches.”

      When one of the deputies attempted to stand her up, Baker tried to bite him.

The deputies were successful in sitting Baker on the bench, but she continued to

curse at the deputies. The report reflects that Baker was seen by a jail nurse for a

bump on the side of her forehead.

      On January 21, 2014, Baker sued Harris County for personal injuries

allegedly sustained during her arrest and booking. Baker claimed that the county’s

immunity from suit was waived because her claims fell within a limited waiver of

governmental immunity, provided in the Texas Tort Claims Act section

101.021(2), for injuries caused by a government employee’s negligent use of

tangible personal property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)

(Vernon 2011). Baker averred that her injuries were caused by the deputy’s

negligent use of property, specifically, the handcuffs during her arrest, and by the




                                         3
deputies’ use of the handcuffs, concrete benches, “and other tangible personal

property in the booking area” during her booking at the jail.1

      In her original petition, Baker made the following factual allegations:

      When being placed under arrest, the deputy placed Plaintiff in
      handcuffs in a negligent manner where the hand cuffs were
      negligently placed around [Baker’s] wrist. As [Baker] complained of
      the tightness of the hand cuffs, the deputy began to violently pull
      down on the hand cuffs and strike [Baker] in the back with his knees.
      This caused severe injuries to both [Baker’s] back and wrists.
      Moreover, the deputy violently slammed [Baker] to the ground and
      verbally threatened that not only would he kill her, but nobody would
      care. She would just be another dead crack head although she was not
      found to be in possession of any other substance but a prescription
      medication.

             After arriving at the police station, the violence continued. Still
      using the hand cuffs for leverage, the deputy slammed Plaintiff
      repeatedly into several pieces of furniture at and/or around the
      booking area of the police station including a concrete bench. [Baker]
      sustained injuries to her head and visual apparatuses.

      Baker gave her deposition on June 25, 2014. She testified that, during her

arrest, the deputy had twisted her hands behind her back and squeezed the

handcuffs so tightly that he fractured her wrist. Baker stated that the deputy had

intentionally slammed her to the ground, breaking her teeth.

      Baker testified that the deputy “did the same things” at the jail during the

booking process. Baker stated that it was the deputy who had hit her head on the

concrete bench at the jail. Baker elaborated in the following testimony:

1
      Baker alleged that Harris County was liable for the deputies’ actions based on the
      doctrine of respondeat superior.

                                           4
      Q. Is it your testimony that he intentionally threw you into the
      benches, slammed you into the concrete bench?

      A. Yes, he was very angry and aggressive and hateful. So, yeah, I’m
      sure he meant to do it.

      Q. So, again, it wasn’t that one of you stumbled or whatever. You’re
      saying that he—

      A. Absolutely.

      Q. He intended for it to happen?

      A. Yes, sir.

      On December 22, 2104, Harris County filed a plea to the jurisdiction. Harris

County asserted that it retained immunity under the intentional-tort exception to

the Tort Claims Act’s governmental-immunity waiver. Section 101.057(2) of the

Act specifically excludes waiver for a claim “arising out of assault, battery, false

imprisonment, or any other intentional tort . . . .” See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.057(2) (Vernon 2011). Harris County argued that its immunity

had not been waived because Baker claimed her alleged injuries were caused by

the deputy’s intentional use of excessive force. The county asserted that Baker had

not alleged that her injuries were caused by the negligent use of tangible personal

property.

      Harris County cited City of Watauga v. Gordon in which the Supreme Court

of Texas held that a claim involving a police officer’s use of excessive force—

specifically the use of overly tight handcuffs—to effectuate a lawful arrest was a


                                         5
claim arising out of civil battery rather than out of negligence. 434 S.W.3d 586,

593 (Tex. 2014). Citing section 101.057(2), the Gordon court concluded, “The

Texas Tort Claims Act waives governmental immunity for certain negligent

conduct, but it does not waive immunity for claims arising out of intentional torts,

such as battery.” Id. at 594. Harris County argued that, as in Gordon, its immunity

had not been waived because Baker’s claim that she was injured by the deputy’s

use of excessive force arose from allegations of civil battery, an intentional tort for

which immunity is not waived.

      Baker filed a response to the county’s plea to the jurisdiction. Minimizing

her previous claim that she had been injured by the deputy’s intentional battery of

her, Baker asserted that the injuries she had sustained during booking, when she

fell and hit the concrete bench, had been unintended and had resulted from purely

negligent conduct.    Relying on the Significant Event Bulletin to support her

response to Harris County’s plea, Baker asserted,

      It is clear from the evidence now in [Baker’s] possession that the
      injuries sustained were the result of the negligent acts of [Harris
      County’s] employees. . . . The Significant Event Bulletin clearly
      states that the fall sustained by [Baker] which caused her injuries arise
      from the officer raising his hand without intent to make contact, but
      merely to gain some distance. Furthermore, [the report] proves that
      the injuries sustained were from the negligent use of the restraints and
      placement of the booking room while [Baker] was intoxicated.

      Three days after filing her response, Baker amended her petition. She again

alleged Harris County’s immunity was waived pursuant to Tort Claims Act section


                                          6
101.021(2) because it had caused her injuries “by the negligent use and/or

condition of tangible personal property,” specifically, “the handcuffs, booking

area, concrete benches and other tangible personal property in the booking area.”

Baker deleted most of her earlier allegations that the deputy had used excessive

force when arresting her. Baker did maintain that, in effecting her arrest, the

deputy had “pulled down on the handcuffs,” causing her severe injuries to her back

and to her wrists. However, the primary focus of Baker’s negligence claims in her

amended petition was as follows:

      While in the booking room of the Harris County Sheriff’s
      Department, [Baker] was left restrained and placed on a bench.
      Employees of the Harris County Sheriff’s Department were aware that
      [Baker] was intoxicated but left the restraints on her hands and failed
      to fully restrain her so that she could not stand up. After being told to
      sit down once, [Baker] stood up and approached an officer. The
      officer put his hand up to form distance between himself and [Baker].
      [Baker] then fell and received injuries due to property located in the
      booking room and/or the restraints that were being improperly used.

      After Baker amended her petition, Harris County supplemented its plea to

the jurisdiction. Harris County averred, “The amendment of [Baker’s] Petition . . .

carefully deleted all references to violence and slamming and assault by the

deputies[,] but the amended pleading does not delete or diminish the actual sworn

testimony of Plaintiff Stefanie Jo Baker herself” in which she described the

deputy’s intentional and violent conduct that caused her alleged injuries.




                                          7
       Before amending her petition, Baker had responded to written discovery

requests.    In its supplement, Harris County pointed to Baker’s interrogatory

answers in which she described, as she had in her deposition testimony, the

deputy’s intentional and violent conduct during her arrest and booking, which she

claimed caused her injuries. Harris County maintained that its immunity from suit

was not waived because, as described in her sworn statements, Baker’s claims

arose from intentional tortious conduct, not from negligent conduct.

       Harris County further asserted that its immunity was not waived under the

“condition or use of tangible property” provision of the Tort Claims Act because

neither the condition nor the use of tangible personal property in this case had

proximately caused Baker’s injuries. Baker had cited the handcuffs, the concrete

bench, and the booking room itself as being the tangible property used by the

deputy to cause her injury.        Harris County averred that the tangible property

mentioned by Baker did not cause her alleged injuries but, at most, provided a

condition that made her injuries possible.

       The trial court denied Harris County’s plea to the jurisdiction.       This

interlocutory appeal followed. On appeal, the county raises two issues challenging

the trial court’s denial of its plea.




                                             8
                              Plea to the Jurisdiction

A.    Standard of Review

      Whether subject-matter jurisdiction exists is a question of law that can be

challenged, as it was here, by a plea to the jurisdiction. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo the disposition of

Harris County’s jurisdictional plea. Tex. Dept. of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). Because we address a plea to the jurisdiction in

which disputed evidence implicates both the court’s subject-matter jurisdiction and

the merits of the case, we consider relevant evidence submitted by the parties to

determine if a fact issue exists. Id. at 227. We take as true all evidence favorable

to the non-movant, indulge every reasonable inference, and resolve any doubts in

the non-movant’s favor.     Id. at 228.    If the evidence creates a fact question

regarding jurisdiction, the plea must be denied pending resolution of the fact issue

by the fact finder. Id. at 227–28. If the evidence fails to raise a question of fact,

however, the plea to the jurisdiction must be granted as a matter of law. Id. at 228.

B.    Waiver of Governmental Immunity

      Without a valid statutory or constitutional waiver, a trial court lacks subject-

matter jurisdiction to adjudicate a lawsuit against a political subdivision, such as

Harris County. See Suarez v. City of Tex. City, 465 S.W.3d 623, 631 (Tex. 2015);

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 836–37



                                          9
(Tex. 2010). The Tort Claims Act waives a governmental unit’s immunity from

suit but only “to the extent of liability created by [the Act].” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.025(a) (Vernon 2011). Relevant to this case, the Tort

Claims Act provides that a governmental unit is liable—and thus immunity is

waived—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.” Id. § 101.021(2) (Vernon

2011). The immunity waiver is therefore intertwined with the merits of a claim

under the Tort Claims Act. Suarez, 465 S.W.3d at 632.

C. Arrest-Based Claims

      In its first issue, Harris County contends that it has retained its immunity

from Baker’s claim that she was injured by the deputy’s use of excessive force in

effecting her arrest. Although she had deleted most of her excessive-use-of-force

allegations made in her original petition, Baker alleged in her amended petition

that she was injured during her arrest when the deputy “pulled down on the

handcuffs.”   Harris County correctly points out that the Tort Claims Act

specifically states that any waiver of immunity provided for in the Act does not

apply to claims arising out of intentional torts. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.057(2). Harris County also correctly points out that the Supreme Court

of Texas held in Gordon that a claim of excessive force by a police officer in



                                        10
effecting a lawful arrest is a claim for battery, an intentional tort. 434 S.W.3d at

593. As a result, a governmental unit’s immunity is not waived under the Tort

Claims Act when a plaintiff claims that she was injured by a police officer’s use of

excessive force in effecting a lawful arrest. See id. at 594.

      In her responsive appellate brief, Baker states that she “has abandoned her

claims regarding injuries that may have been received due to the initial

handcuffing and arrest prior to arrival at the police station.” Baker further states

that she “agrees that the Texas Supreme Court, through its decision in City of

Watauga v. Gordon, has ruled that any injuries sustained during the initial

handcuffing and/or arrest of a suspect arise from an intentional touching therefore

making the conduct an intentional tort.” Thus, because Baker acknowledges that

Harris County has not waived its immunity to her claims that that the deputy used

excessive force in effecting her arrest, and she has abandoned those claims, we

dismiss Harris County’s first issue as moot.

C. Booking-Room Claims

      Although she has abandoned her arrest-based claims of excessive force,

Baker maintains that Harris County’s immunity is waived because she has stated a

Section 101.021(2) claim for negligent use of tangible personal property with

respect to the injuries she sustained in the booking room. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2). In its second issue, Harris County argues that it



                                          11
retains its immunity from these claims because the injuries sustained by Baker in

the booking room were not caused by the county’s use of tangible personal

property, as required under Section 101.021(2). See id.

       1. Legal Principles

       “Section 101.021(2) requires that for immunity to be waived, personal injury

or death must be proximately caused by the condition or use of tangible property.”

Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339,

343 (Tex. 1998). “Use” means “to put or bring into action or service; to employ

for or apply to a given purpose.” Tex. Nat. Res. Conservation Comm’n v. White,

46 S.W.3d 864, 869 (Tex. 2001). Proximate cause consists of cause-in-fact and

foreseeability. City of Sugar Land v. Ballard, 174 S.W.3d 259, 266 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (citing Leitch v. Hornsby, 935 S.W.2d 114, 118

(Tex. 1996)).     The test for foreseeability is whether a person of ordinary

intelligence would have anticipated the danger that his negligence created. Id. at

267.

       An act or omission is a cause-in-fact of the injury if it is a substantial factor

in causing the injury without which the injury would have not occurred. Id. (citing

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). To

establish cause in fact, or “but for” causation, a party must show that the

defendant’s negligence was a substantial factor in bringing about her injury and



                                           12
was a factor without which no harm would have been incurred. Id. (citing Excel

Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002). “The word substantial is used

to denote the fact that the defendant’s conduct has such an effect in producing the

harm as to lead reasonable men to regard it as a cause, using that word in the

popular sense, in which there always lurks the idea of responsibility.” Id. (quoting

Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995). This is in

contrast to the “so-called philosophic sense, which includes every one of the great

number of events without which any happening would not have occurred.” Id.

      The Supreme Court of Texas has cautioned that the Section 101.021(2)

waiver requires more than the property’s mere involvement. Bossley, 968 S.W.2d

at 343. The court made clear that property does not cause injury if it does no more

than furnish the condition making the injury possible. Id. Proximate cause instead

requires some nexus between the use of the property and the plaintiff’s injury. Id.

at 342–43; see also Dallas Cnty. v. Posey, 290 S.W.3d 869, 872 (Tex. 2009). For

the property waiver to apply, the use of the property must actually have caused the

injury. Posey, 290 S.W.3d at 872.

      2. Analysis

      In her amended petition, Baker relies on the following allegations to support

her negligence claim based on the county’s alleged negligent use of tangible

personal property:



                                        13
      While in the booking room of the Harris County Sheriff’s
      Department, [Baker] was left restrained and placed on a bench.
      Employees of the Harris County Sheriff’s Department were aware that
      [Baker] was intoxicated but left the restraints on her hands and failed
      to fully restrain her so that she could not stand up. After being told to
      sit down once, [Baker] stood up and approached an officer. The
      officer put his hand up to form distance between himself and [Baker].
      [Baker] then fell and received injuries due to property located in the
      booking room and/or the restraints that were being improperly used.

      Baker alleges her injuries in the booking room were proximately caused by

the deputies’ negligent use of the handcuffs, the concrete bench, and other

unspecified “furnishings located in the booking room.” In support of its plea to the

jurisdiction, Harris County offered Baker’s deposition testimony and her discovery

responses in which Baker stated under oath that her injuries in the booking room

were caused by the deputy’s intentional use of excessive force; that is, they were

caused by an intentional tort, battery, for which the county retains immunity under

the Tort Claims Act.

      With respect to the injuries she sustained in the jail booking room, Baker

testified as follows in her deposition:

      [T]hen I went to the jail, and he booked me in there. And then [the
      deputy] did the same thing there, and I hit my head on—I think—like
      I said, I’m pretty sure I hit my head on the cement benches. It was not
      I hit my head. [The deputy] hit my head, you know, when he jerked
      me.

(Emphasis added.)




                                          14
      Later in her deposition, the following exchange occurred regarding the

injuries she sustained in the booking room:

              Q. [I]s is it your testimony that [the deputy] threw you into the
              benches, slammed you into the concrete bench?

              A. Yes, he was very angry and aggressive and hateful. So,
              yeah, I’m sure he meant to do it.

              Q. So, again, it wasn’t that one of you stumbled or whatever.
              You’re saying that he—or whatever. You’re saying that he—

              A. Absolutely.

              Q. He intended for it to happen?

              A. Yes, sir.

(Emphasis added.)

      In its discovery request, Harris County asked Baker “[to] describe how you

claim the deputy used tangible personal property to cause you injury at the Harris

County Jail.” In her sworn answer, Baker responded as follows:

      To the best of my knowledge I was slammed on the concrete benches,
      still using the handcuffs, head first causing my teeth to basically
      shatter. It is my belief that other objects such as tables could have
      been used to cause my injuries as well. At this time, I had already
      been knocked unconscious previously.

      On appeal, Baker claims that she testified in her deposition that, due to her

injuries, she did not have a clear memory of the events that occurred during her

arrest and detention at the jail. She points to the following exchange during her

deposition:


                                          15
      Q. And that issue of two days before to about three days after you
      were in the jail, has there been any time since January 2012 that
      you’ve had a clear memory of those details or has that been—

      A. No. It’s always—just been gone. It’s just like erased or whatever.

      Baker now claims on appeal that “given [her] admission that she cannot

remember the events that unfolded and the nature of the injuries she sustained to

her head, the accuracy of [Baker’s] account of the story must be completely called

into question.” We note that Baker’s deposition testimony preceding the cited

exchange was not included in the record. In other words, the testimony is cited out

of context. Her current claim on appeal that the cited testimony indicates that she

does not remember what happened at the jail does not comport with her sworn

testimony, given in the same deposition, in which she stated that the deputy

intentionally hit her head on the concrete bench in the booking room.

      Baker asserts that the Significant Event Bulletin, prepared by the Harris

County Sheriff’s Office, “evidenced that the handcuffs and furniture in the booking

room were tangible personal property that proximately caused [her] injuries thus

waiving sovereign immunity.” The bulletin states that Baker was brought to the

booking center at the jail by Deputy Waller. Once there, Baker was escorted to a

bench to await fingerprinting.

      The bulletin states that, when she was called for fingerprinting, “Baker had

trouble standing due to intoxication level. She kept swaying from side to side and



                                        16
almost seemed like she was going to fall asleep standing up.”       The bulletin

indicates that Deputy Waller “had trouble fingerprinting [Baker]” and asked

Deputy Valdez to assist in the process. After her fingerprints were taken, the

deputies placed the handcuffs back on Baker.      The bulletin states that “[t]he

handcuffs were placed on [Baker] in front instead of behind her because she had

trouble balancing herself.” Deputy Waller then escorted Baker back to the bench

where she sat down.

      According to the bulletin, Baker then said that “she needed to use the

bathroom to change out her ‘[feminine] pad.’” Deputy Valdez told Baker that he

would escort her to the inmate processing center where she could obtain feminine

hygiene products, but she would need to wait a few minutes. After hearing this,

Baker stood up and “began cursing Deputy Valdez along with Deputy Waller.”

Deputy Valdez asked Baker to sit down. Baker refused and called the deputy a “f--

-ing pig.”

      Deputy Valdez again asked Baker to sit down, but she still refused. Baker

then walked towards another deputy, Deputy Albers, who was completing

paperwork. Deputy Albers advised Baker to have a seat, and she said, “F--- you! I

have to use the restroom . . . . You f---ing pig.” Baker continued to approach

Deputy Albers as she made the statement. The deputy escorted her back to her

seat. When Deputy Albers turned around, Baker stood up again and began walking



                                       17
toward him. As Baker walked towards Deputy Albers, Deputy Valdez grabbed

Baker’s arm and sat her down. Baker then cursed at Deputy Valdez stating, “Don’t

f---ing touch me pig!”

       At this point, the event on which Baker now bases her negligent use of

property claim is discussed in the bulletin:

       Deputy Valdez attempted to explain to [Baker] that she would be
       taken across the street momentarily. She cursed him again and stood
       back up and walked towards him. Since her handcuffs at that time
       were still in front of her[,] Deputy Valdez was in fear that [Baker]
       might assault him. Deputy Valdez raised his arm in an attempt to stop
       her and to maintain distance from him. Due to her intoxicated state[,]
       [Baker] lost balance and fell down on her left side between the
       concrete benches.

       The bulletin reflects that, after she fell, Baker became combative, attempting

to bite and kick the deputies. Baker was ultimately taken to the inmate processing

center. She was later seen by nurse at the facility for a bump on her forehead.

       Even when we view the bulletin in the light most favorable to Baker, take it

as true, and indulge every reasonable inference and doubt in Baker’s favor, the

bulletin does not show that the deputies’ use of any of the tangible personal

property cited by Baker—namely, the handcuffs, concrete bench, and other room

furnishings—was a substantial factor in causing Baker’s injury, without which her

injury would have not occurred. In other words, no nexus is established by the

bulletin between the deputies’ use of the property in the booking room and Baker’s

injuries.


                                          18
      Although the bulletin indicates that Baker was wearing handcuffs when she

fell, and that the handcuffs had been placed in front of her due to her balance

issues, nothing in the bulletin indicates that the handcuffs played a role in causing

her to lose her balance or to fall. The bulletin indicates that, before she fell, Baker

had gotten up twice from the bench without falling. Baker fell the third time she

got up from the bench. The third time differed from the first and second times in

that, the third time she stood up, Deputy Valdez raised his arm to defend himself

against her. As described in the bulletin, this action, along with her own decision

to stand up a third time, set in motion Baker’s fall.

      In addition to no mention of the handcuffs with respect to Baker’s injury, the

bulletin does not indicate that the deputies’ use of the concrete bench or any other

furnishings in the room was a substantial factor in causing Baker’s injuries. Baker

asserts on appeal that it was the manner in which the furniture was arranged, which

caused her to fall. However, when she was asked in her deposition whether she

had stumbled in the booking room, Baker’s testimony indicated that she had not.

Instead, she confirmed that the deputy had intentionally slammed her into the

concrete bench. And the bulletin on which Baker relies does not indicate that the

furniture in the room was a factor in causing her to fall.

      While the use of concrete bench as described in the bulletin could be said to

be involved in Baker’s injuries in the philosophical sense, nothing in the bulletin



                                          19
indicates or implies that the deputies’ use of the bench or any other furniture in the

room caused Baker to lose her balance or to fall. Instead, the bulletin shows that

the deputies were using the bench to keep Baker seated. She was injured when she

chose to stand up, despite being repeatedly told to remain seated. At most, the

deputies’ use of the bench in this case could be said to furnish the condition that

made Baker’s injury possible.2         See Bossley, 968 S.W.2d at 343; see also

Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511, 513 (Tex. App.—Fort

Worth 2001, pet. denied) (holding that bed from which patient fell “did no more

than furnish the condition that made the injury possible[,] and it did not

proximately cause the injury”).

      Although it does not show that the deputies’ use of the handcuffs, the bench,

or other furnishings caused Baker’s injuries, the bulletin, on which Baker relies,

does expressly state a cause of her fall. The bulletin states that Baker lost her

balance “[d]ue to her intoxicated state.” The bulletin does not otherwise address a


2
      Baker relies on Vela v. City of McAllen as support for her argument that Harris
      County’s use of the concrete bench proximately caused her injuries. 894 S.W.2d
      836 (Tex. App.—Corpus Christi 1995, no writ). There, the court held that the
      police’s use of a booking room and the placement of a stool in the room was “use”
      of personal property as contemplated by section 102.021(2). Id. at 840. However,
      the issue of whether the use of the property was the cause-in-fact of the plaintiff’s
      injuries was not analyzed in Vela. Moreover, Vela was decided without the
      benefit of the supreme court’s decision in Dallas County Mental Health & Mental
      Retardation v. Bossley, in which the court made clear that use of property does not
      cause injury if it does no more than furnish the condition making the injury
      possible. 968 S.W.2d 339, 343 (Tex. 1998). Thus, Vela does not aid us in our
      review of the instant case.

                                           20
reason for her fall and, as stated, does not implicate the deputies’ use of the

handcuffs, the bench or other furniture, either expressly or inferentially, in causing

Baker’s fall or her injuries. In short, the jurisdictional evidence indicates two

possible causes of Baker’s booking-room injuries. The evidence offered by Harris

County, Baker’s sworn statements, indicates that Baker’s injuries were caused by

the deputies’ intentional use of excessive force. Baker’s evidence, the bulletin,

indicates that Baker’s injuries were caused by the deputy’s raising of his arm to

defend against Baker and, more preeminently, by Baker’s own intoxication. No

evidence shows that the deputies’ use of tangible personal property proximately

caused Baker’s injuries in the booking room. 3

      Construing the evidence and every reasonable inference in Baker’s favor, we

conclude there is no evidence from which a reasonable factfinder could conclude


3
      Baker also alleged in her amended petition that Harris County was negligent
      because it failed to restrain her fully so she could not stand up. In her appellate
      brief, Baker indicates that her injuries were caused because the deputies permitted
      her to have “free movement” in the booking room. To the extent that Baker
      implies that that the deputies should have used different or additional restraints to
      prevent her from standing, the Supreme Court of Texas has held that the “nonuse
      of property does not suffice to invoke section 101.021(2)’s waiver.” City of N.
      Richland Hills v. Friend, 370 S.W.3d 369, 372 (Tex. 2012). To the extent that
      Baker is basing her claim on the deputies’ failure to act to restrain her, “a state
      entity’s failure to act does not invoke the Tort Claims Act’s limited waiver of
      immunity.” Univ. of Tex. Med. Branch v. Qi, 402 S.W.3d 374, 389–90 (Tex.
      App.–Houston [14th Dist.] 2013, no pet.); see Kassen v. Hatley, 887 S.W.2d 4, 14
      (Tex. 1994) (holding that failure to provide medication claim did not allege an
      injury arising from the “use” of the medication, but stated a claim for non-use of
      property that did not trigger waiver of sovereign immunity).


                                           21
that the deputies’ use of the handcuffs, concrete bench, and other furnishings in the

booking room proximately caused Baker’s injuries. 4 Because the evidence fails to

raise a genuine and material fact issue concerning whether the use of tangible

personal property proximately cause Baker’s injuries, Harris County retains

immunity from suit, and the trial court lacks jurisdiction over Baker’s claims.

      We hold that the trial court erred when it denied Harris County’s plea to the

jurisdiction. We sustain the county’s second issue.




4
      In the trial court, Baker also based her claim on the deputies’ use of the booking
      room itself. However, the booking room at the jail would be considered real
      property, not tangible personal property. See Nunez v. City of Sansom Park, 197
      S.W.3d 837, 842 (Tex. App.—Fort Worth 2006, no pet.) (holding jail cell to be
      real property, not personal property); see also San Antonio Area Found. v. Lang,
      35 S.W.3d 636, 640 (Tex. 2000) (defining real property as “land, and generally
      whatever is erected or growing upon or affixed to land”). “Neither a cause of
      action for negligent use of real property nor a cause of action involving a condition
      of real property exists separate and apart from a cause of action for a premises
      defect.” Nunez, 197 S.W.3d at 842. The term “premises” has been defined as a
      building or part thereof with its grounds and appurtenances. Id. “Defect” has been
      defined as a shortcoming, an imperfection, or the want of something necessary for
      completeness. Id. Here, Baker has not stated a premises defect claim because she
      has not alleged a defect, shortcoming, or imperfection of the booking room itself.
      See id. To the extent that her claim that the arrangement of the furniture in the
      booking room caused her injury, the jurisdictional evidence, as discussed,
      including the Significant Even Bulletin on which Baker relies, does not support
      this as the proximate cause of her injuries.


                                           22
                                         Conclusion

      We reverse the order of the trial court and render judgment dismissing

Baker’s claims against Harris County.5




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Keyes, Higley, and Brown.




5
      Rendition is appropriate because the record reflects that Baker has been given a
      full and fair opportunity to address the issue of jurisdiction in the trial court,
      having amended her petition and developed the record. See Rusk State Hosp. v.
      Black, 392 S.W.3d 88, 96 (Tex. 2012).

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