Opinion issued June 28, 2018




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                           ————————————
                            NO. 01-17-00956-CV
                          ———————————
       TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant
                                     V.
                        CESAR RANGEL, Appellee


                   On Appeal from the 80th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-64114


                        MEMORANDUM OPINION

     In this appeal, we consider whether the Texas Tort Claims Act 1 [TTCA]

permits an inmate to sue the Texas Department of Criminal Justice [“TDCJ”] for

injuries he sustained when a prison guard used a tear gas gun to disperse two

1
     See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001–.109 (Vernon 2011 & Supp.
     2016).
groups of inmates who were threatening to fight and refusing to return to their cells

for the night. Specifically, we consider whether (1) furnishing the gun and gas

shells to the prison guard was a negligent “use” of tangible personal property under

the TTCA, (2) application of the TTCA is precluded because the prison guard’s act

was alleged to be an intentional tort, or (3) the emergency and riot exceptions to

the TTCA’s limited waiver of immunity apply. We affirm the trial court’s denial of

TDCJ’s plea to the jurisdiction.

                                   BACKGROUND

      On May 19, 2015, at 10:30 p.m., several inmates at Lychner State Jail

refused to return to their bunks, or “rack up,” for the night. TDCJ requested a

supervisor, and Lieutenant Cody Waller, a TDCJ prison guard, responded and

ordered the inmates to “rack up,” which they did at that time.

      Approximately 30 minutes later, Waller was again called to the dormitory

because the inmates were refusing to return to their bunks for a count. When

Waller arrived again, two groups of 13 inmates each were engaged in a verbal

altercation and were threatening to fight.     Waller and a sergeant ordered the

inmates to return to their bunks, but the inmates refused to do so. Waller then

requested that the sergeant retrieve a 37-mm gas gun and a video camera as a show

of force. While waiting for the camera, the inmates began making aggressive




                                         2
gestures to one another, such as striking their closed fists against the palms of their

hands.

      The sergeant retrieved a video camera, 37-mm gas gun, and two rounds of

gas from the armory. The two rounds of ammunition were different. One was

longer, had the word “smokeless” written on it, and the rest of the writing on it was

faded. The second round was shorter in length.

      Once the guards had the gun and camera, the inmates became less

aggressive, but continued threatening one another verbally. One inmate said, “You

might as well bust the gas because as soon as you leave, we gonna fight. Otherwise

you will have to stand here between us all night. We ain’t gonna rack up

otherwise.”

      Waller handed the gas gun and ammunition to the sergeant and went to

speak to the duty warden to obtain authorization to use the gas gun. Waller and the

duty warden discussed the issue for 15 to 20 minutes. The duty warden told Waller

to give the inmates two verbal orders to comply and authorized the use of the gas

gun if the offenders still refused to rack up.

      As Waller was walking back to the dormitory, he loaded the longer of the

two shells in the gun. He used the longer “skat shell” in the gun rather than the

shorter “muzzle blast shell.”




                                           3
        Back in the dormitory, Waller gave four separate orders for the inmates to

return to their assigned bunks or he would disperse the chemical agents. One group

of inmates refused to comply with each order. Waller then fired the gas canister

into the group of inmates who were refusing to comply with orders. The “skat

round” that was in the 37-mm gas gun hit Rangel, causing burns and a fractured

hand.

        TDCJ later determined that Waller had inadvertently used the “skat round,”

which was designated for outdoor use only. TDCJ found that “[a]lthough the

inappropriate round was used, chemical agents were necessary to prevent a major

disturbance and imminent bodily harm to staff and offenders.”

        Rangel filed suit against both Waller and TDCJ. Rangel’s Second Amended

Petition alleges that TDCJ is liable for (1) dispensing the outdoor-only skat shell

for use in handling an indoor situation, (2) labeling the skat shell improperly

because the writing on it was smeared and faded, and (3) authorizing Waller to use

the gun without questioning Waller’s choice of chemical-agent munition. Rangel

also filed “excessive force” claims against Waller, the sergeant, and the duty

warden under 42 U.S.C. § 1983.

        TDCJ filed a plea to the jurisdiction, alleging that, because Rangel’s claims

arose from an alleged use of excessive force, an intentional tort, his pleadings did

not state a claim against TDCJ for which sovereign immunity has been waived


                                          4
under the TTCA. Rangel responded to the plea to the jurisdiction, alleging that

TDCJ’s negligent use of personal property caused his damages, that the

intentional-tort exception to the limited waiver of sovereign immunity did not

apply because TDCJ’s negligence in furnishing the skat shell combined with

Waller’s excessive use of force to cause his injuries, and that the emergency and

riot exceptions to the limited waiver of sovereign immunity presented a fact

question for a jury.

      The trial court denied TDCJ’s plea to the jurisdiction and this interlocutory

appeal followed.2

            DENIAL OF TDCJ’S PLEA TO THE JURISDICTION

      In several related issues on appeal, TDCJ contends that the TTCA does not

waive sovereign immunity in this case because there was no “use” of tangible

personal property. Specifically, TDCJ contends that providing the ammunition and

gun to the prison guard and authorizing the use of the gun over the telephone was

not a “use” of tangible personal property. TDCJ also contends that, even if there

was a “use” of tangible personal property, there was no waiver of sovereign

immunity because the prison guard who fired the skat round was either (1)

2
      TDCJ also filed a no-evidence motion for summary judgment and a traditional
      motion for summary judgment. However, the trial court marked through
      references to those pleadings in its order denying the plea to the jurisdiction,
      thereby indicating that it was not ruling on those motions. As such, the summary
      judgment motions remain pending in the trial court and are not part of this
      interlocutory appeal.
                                          5
responding to an “emergency situation, civil disobedience, or riot” or (2)

committing an intentional tort. We address each contention respectively.

Standard of Review

      A plea to the jurisdiction based on governmental immunity challenges a trial

court’s subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.

2004). An appeal may be taken from an interlocutory order granting or denying a

plea to the jurisdiction filed by a governmental unit. TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8) (West Supp. 2017). We review de novo the trial court’s ruling on a

plea to the jurisdiction. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013)

(per curiam).

      The plaintiff must allege facts that affirmatively establish the trial court’s

subject-matter jurisdiction. Holland, 221 S.W.3d at 642. In determining whether

the plaintiff has satisfied this burden, we construe the pleadings liberally in the

plaintiff’s favor and deny the plea if facts affirmatively demonstrating jurisdiction

have been alleged. Id. at 643; Miranda, 133 S.W.3d at 227; Smith v. Galveston

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

      When a defendant challenges the existence of jurisdictional facts in a plea to

the jurisdiction, the trial court must consider relevant evidence submitted by the

parties. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009); Miranda, 133


                                         6
S.W.3d at 227. Because the standard of review on appeal “generally mirrors that of

a summary judgment,” in reviewing the evidence presented, we take as true all

evidence favorable to the nonmovant and indulge reasonable inferences and

resolve doubts in her favor. Miranda, 133 S.W.3d at 228. When the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue,

the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. If,

however, the evidence creates a fact question regarding jurisdiction, then the trial

court must deny the plea, and the fact issue will be resolved by the factfinder. Id. at

227–28.

Use of Tangible Personal Property

      Section 101.021(2) of the Texas Civil Practice and Remedies Code provides

that a governmental unit is liable for personal injury or death caused by the use of

tangible personal 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) (West 2011).

      To fall within the waiver of section 101.021(2), the plaintiff’s injury “must

be proximately caused by the condition or use of tangible property.” Dall. Cty.

Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).

“The requirement of causation is more than mere involvement,” and “[p]roperty

does not cause injury if it does no more than furnish the condition that makes the


                                           7
injury possible.” Id.; see Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,

588 (Tex. 2001). The Texas Supreme Court requires a causal nexus between the

use of the property and the plaintiff’s injury. Dall. Area Rapid Transit v. Whitley,

104 S.W.3d 540, 543 (Tex. 2003); see Bossley, 968 S.W.2d at 342–43 (incidental

involvement of property is insufficient to establish waiver, and property does not

“cause” the injury if it simply furnishes the condition that makes the injury

possible); Univ. of Tex. Med. Branch Hosp. v. Hardy, 2 S.W.3d 607, 609 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied) (there must be “direct and

immediate relationship” between injury and “use” of property).

      TCDJ contends that “[m]erely furnishing the gun, a muzzle blast round, and

the skat shell was not a negligent ‘use’ under the TTCA.” In support, TDCJ relies

on Dallas County Mental Health & Mental Retardation v. Bossley. In Bossley, a

mentally ill patient escaped through unlocked hospital doors and later committed

suicide by leaping in front of a truck. 968 S.W.2d 339, 340–41 (Tex. 1998). The

Texas Supreme Court concluded that neither the use of tangible property, i.e.,

unlocking the hospital doors, nor their condition, i.e., being unlocked, caused the

patient’s death. Id. at 343. While the doors may have “furnish[ed] the condition

that ma[de] the injury possible” by permitting the patient to escape into the

community where he committed suicide, “the use and condition of the doors were

too attenuated from [the patient’s] death to be said to have caused it.” Id.


                                           8
      However, unlike Bossley, the use of the gun and skat shell was not “too

attenuated . . . to be said to have caused it.” Indeed, state actors gave the prison

guard the gun and skat shell for the express purpose of using it to control the

situation with the inmates. The prison guard sought and obtained not only the gun

and shells, but also permission to use them. As such, this case is more like several

others in which the state did more than “furnish the condition that made the injury

possible,” but, instead, actually dispensed the personal property, which was then

used for its intended purpose.

      In University of Texas M.D. Anderson Cancer Center v. Jones, 485 S.W.3d

145, 151 (Tex. App.—Houston [14th Dist.] 2016, pet. denied), the plaintiff, a long-

time smoker, participated in a smoking-cessation study by The University of Texas

M.D. Anderson Cancer Center [“UTMDA”]. Id. at 147. UTMDA prescribed a

medication and dispensed it to the plaintiff through its pharmacy. Id. After she

attempted suicide, the plaintiff sued UTMDA, alleging that it had negligently

prescribed and dispensed the medication that caused her depression. Id. at 148.

The court of appeals held that the dispensing of the drug by UTMDA’s pharmacy

was a use of tangible personal property for purposes of the section 101.021(2)

waiver of sovereign immunity. Id. at 150. The court of appeals noted that the

supreme court has defined “use” as “to put or bring into action or service; to

employ for or apply to a given purpose.” Id. at 151 (quoting Tex. Dep’t of Crim.


                                         9
Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001)). The court concluded that “[b]y

giving [the plaintiff] the drug and directing her to take it for the purposes of

quitting smoking and conducting its study, UTMDA put the drug into service and

employed it for a given purpose as those concepts are commonly understood.” Id.

at 151.

      In City of Houston v. Davis, 294 S.W.3d 609 (Tex. App.—Houston [1st

Dist.] 2009, no pet.), the plaintiff sued the City of Houston after she was bitten by

a police dog. Id. at 611. The City filed a plea to the jurisdiction claiming that

there was no waiver of sovereign immunity because the City’s police officer was

not “using” the dog. Id. at 612. This Court noted that, when determining whether

personal property has been “used,” we consider “the purpose for the property,

whether the use of the property was a direct factor in the injury, and whether the

property did more than merely furnish the condition that made the injury possible.”

Id. (citing Retzlaff v. Tex. Dep’t of Crim. Justice, 135 S.W.3d 731, 741 (Tex.

App.—Houston [1st Dist.] 2003, no pet.)). We also “take into account the entirety

of the circumstances under which the incident arose.” Id. The Court noted that the

dog’s purpose was to assist the officer’s performance of police duties, which the

officer was carrying out at the time of the injury, and that the dog directly caused

the injury. Id. at 612–13. As such, the dog did more than merely furnish the

condition that made the injury possible. Id. at 613.


                                         10
      In Texas State Technical College v. Beavers, 218 S.W.3d 258 (Tex. App.—

Texarkana 2007, no pet.), a student filed a lawsuit against a state technical college

after he injured his hand using a hydraulic hoist provided by the college. Id. at

260. The college filed a plea to the jurisdiction, alleging that it did not “use” the

hoist, rather, the student did.   Id. at 261. The court of appeals noted that a

governmental unit does not “use” personal property “merely by allowing someone

else to use it and nothing more.” Id. at 265. However, the court concluded that the

college “did not merely allow access to the engine hoist assembly; it configured the

assembly and placed it into service, instructed Beavers in its use, and directed that

he use it.” Id. at 266. The court concluded as follows:

      [W]hen a governmental unit does more than merely allow another
      access to personal property, but also negligently equips the property,
      intentionally puts it into service for use by another with full
      knowledge of its intended use, and instructs the manner of its use, and
      when the personal property so supplied is in fact used in the manner
      and for the purpose the governmental unit intended and such use of
      the tangible personal property is a proximate cause of injury, the
      governmental unit has used tangible person property in such a manner
      as to waive immunity under the Tort Claims Act.

Id. at 267.

      This case is more like Beavers, Davis, and Jones than Bossley. In Bossley,

the open door did not cause the plaintiff’s suicide, it just furnished a means for the

plaintiff’s escape, after which he committed suicide. In Beavers, Davis, and Jones,

the property furnished by a governmental unit directly caused the plaintiff’s injury


                                         11
when it was used as the governmental unit anticipated that it would be used. Here,

the governmental entity, i.e., the prison armory, dispensed the skat shell and the

gun in response to a specific incident—the situation between the rival groups of

inmates—and the prison guard used the gun and skat shell as intended—to end the

stand-off between the groups of inmates and force them to return to their cells. As

such, we hold that the trial court correctly concluded that TDCJ “used” the gun and

skat shell for purposes of the waiver of sovereign immunity. See also Retzlaff, 135

S.W.3d at 741 (holding TDCJ “used” razor wire by placing it along perimeter

fence and the wire was a direct factor in plaintiff’s injuries). In so holding, we

reject TDCJ’s argument that cases in which the governmental unit “furnished” the

instrument that caused the injury are “specific to the use of medication.” Nothing

in the text of Jones indicates that its reasoning is limited to the dispensing of drugs.

The holding is based on the fact that the governmental entity provided the property

and that, while being used for the specific purpose for which it was dispensed, the

property caused injury.

      Similarly, we reject as hyperbole TDCJ’s claim that “holding TDCJ liable

here would be tantamount to holding any law enforcement agency liable for

issuing a gun or handcuffs to a police officer as a ‘use’ when a police officer later

uses the gun or handcuffs to harm someone in the intentional tort of battery.” It is

safe to say that handcuffs and guns are not dispensed for the purpose of having


                                          12
someone commit the intentional tort of battery. The “use” alleged in this case is the

dispensing of the incorrect type of gas shell to handle the inmate disturbance, not

the alleged intentional tort by Waller.

      Because TDCJ furnished tangible personal property that, when used for the

specific purpose intended, caused Rangel’s injury, the trial court did not err in

denying TDCJ’s plea to the jurisdiction. Because we have held that Rangel’s

pleadings allege a “use” of tangible personal property that waives sovereign

immunity, we need not decide whether Rangel allso alleged a defective condition

of personal property or a failure by TDCJ to follow policy.

      We overrule issues three, four, and five.

Intentional Tort

      TDCJ contends that, even if Rangel pleaded and proved that his claims fall

within the TTCA’s limited waiver of immunity from claims involving a use of

tangible personal property, it is immune because the TTCA’s exception for

intentional torts applies. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2)

(West 2011) (“This chapter does not apply to a claim ... arising out of assault,

battery, . . . or any other intentional tort. . . .” ). Specifically, TDCJ contends that

the gravamen of Rangel’s complaint is that the prison guard used excessive force

in dealing with the situation presented and that Rangel is attempting to “artfully

plead around the TTCA by alleging negligence.”


                                          13
      In support, TDCJ relies on City of Watauga v. Gordon, 434 S.W.3d 586

(Tex. 2014). In Gordon, 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 constituted a claim arising out of civil

battery rather than out of negligence. Id. at 593. 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. TDCJ argues that, as in

Gordon, its immunity had not been waived because Rangel’s claim that he was

injured by Waller’s use of excessive force arose from allegations of battery, an

intentional tort for which immunity is not waived.

      We agree with TDCJ that the TTCA does not waive immunity for claims

arising out of intentional torts. We also agree that a plaintiff may not maintain a

negligence claim under the TTCA when the claim is based on “the same conduct”

as the intentional tort claim. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d

575, 580 (Tex. 2001). Here, however, the claim against TDCJ is based on conduct

that differs from his excessive-force claim against Waller. Rangel’s claim against

Waller is based on an allegation that firing the gun toward the group of inmates

constituted a use of excessive force, i.e. an intentional tort. In contrast, Rangel’s




                                          14
claim against TDCJ is based on negligence in providing Waller a skat shell, which

was to be used outdoors only, to respond to an indoor disturbance.

      Because Rangel has alleged different facts giving rise to his negligence

claim, it is not based on the same conduct as his excessive-force claim and is not

precluded by Gordon. See City of Houston v. Nicolai, 539 S.W.3d 378, 392–93

(Tex. App.—Houston [1st Dist.] 2017, pet. filed) (holding that intentional-tort

exception does not apply when negligence claim “is distinct from any intentional

tort” and “government employee whose conduct is the subject of the [negligence

claim against the government] is not the intentional tortfeasor”); cf. Saenz v. City of

El Paso, 637 Fed. Appx. 828, 831 (5th Cir. 2016) (“In this case, [plaintiff] alleges

no distinct facts aside from those that formed the basis of the excessive force

claim. Because [plaintiff’s] negligence claim relies on the same conduct as the

excessive force allegations it falls outside the TTCA’s ‘limited waiver of sovereign

immunity.’”).

      “[I]ntentional conduct intervening between a negligent act and the result

does not always vitiate liability for the negligence.” Delaney v. Univ. of Hous.,

835 S.W.2d 56, 60 (Tex. 1992). In Delaney, the Texas Supreme Court held that

the plaintiff’s claims against the university for failure to repair her dormitory door

were distinct from a rape that she suffered. Id. In so holding, the court noted that

“[t]o read section 101.057(2) so broadly as to except from the waiver of immunity


                                          15
any claim, irrespective of its nature, for injuries resulting from an intentional tort,

is to ignore a distinction which the law recognizes when negligent and intentional

acts both contribute to the occasion of injury.” Id.

      Here, the allegation is that the government actor, an armory employee at the

prison, negligently furnished an outdoor-use-only skat shell for indoor use to the

alleged tortfeasor, who then used excessive force.           Both the negligent and

intentional acts combined to cause Rangel’s injury. 3 Because the alleged negligent

act pleaded is distinct from the intentional tort pleaded, the trial court did not err in

denying TDCJ’s plea to the jurisdiction based on the intentional-tort exception to

the limited waiver of sovereign immunity.

      We overrule issue two.

Emergency & Riot Exceptions

      TDCJ contends that, even if Rangel pleaded and proved that his claims fall

within the TTCA’s limited waiver of immunity from claims involving a use of

tangible personal property, it is immune because the TTCA’s exceptions for a

governmental response to emergencies and riots apply. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2) (West 2011) (“This chapter does not apply to a


3
      TDCJ, citing Townsend v. Mem’l Med. Ctr., 529 S.W.2d 264 (Tex. Civ. App.—
      Corpus Christi 1975, writ ref’d n.r.e.), claims that the TTCA can never apply when
      the intentional tortfeasor is a governmental employee. Townsend, however, does
      not allege an independent negligent action by a different state actor from the
      intentional tortfeasor, as does the case here.
                                           16
claim arising . . . from the action of an employee while responding to an

emergency call or reacting to an emergency situation if the action is in compliance

with the laws and ordinances applicable to emergency action . . . .” ); TEX. CIV.

PRAC. & REM. CODE ANN. § 101.057(2) (West 2011) (“This chapter does not apply

to a claim . . .based on an injury or death connected with any act or omission

arising out of civil disobedience, riot, insurrection, or rebellion[.]”).

      As both parties note, there are no cases applying these exceptions to the

TTCA in the context of a disturbance in a prison. TDCJ takes the very broad

position that the emergency/riot exceptions should apply in prisons because “TDCJ

officials likely deal with riot situations more frequently than police officers due to

the violent nature of incarcerated individuals” and that “prison officials should be

given significant deference in running prisons.” We do not disagree that prison

officials have great discretion in how to properly respond to disturbances with

inmates, but we do not necessarily agree that immunity should always follow

regardless of the negligence shown. Under TDCJ’s reasoning, any threatened

disturbance at a prison is an emergency, or even a riot if it involves an assemblage

of seven or more inmates,4 thereby precluding its liability for negligence.


4
      TDCJ recognizes that the TTCA does not define “riot,” but encourages this Court
      to adopt the definition from the Texas Penal Code, which provides:

             For the purpose of this section, “riot” means the assemblage of seven
             or more persons resulting in conduct which: (1) creates an
                                           17
      In response, Rangel argues that whether there was an emergency or riot is a

question for the factfinder in this case. The Texas Supreme Court has set forth the

proper procedure for reviewing jurisdictional facts in a plea to the jurisdiction,

explaining as follows:

       [I]f a plea to the jurisdiction challenges the existence of jurisdictional
      facts, we consider relevant evidence submitted by the parties when
      necessary to resolve the jurisdictional issues raised, as the trial court is
      required to do. When the consideration of a trial court’s subject matter
      jurisdiction requires the examination of evidence, the trial court
      exercises its discretion in deciding whether the jurisdictional
      determination should be made at a preliminary hearing or await a
      fuller development of the case, mindful that this determination must
      be made as soon as practicable. Then, in a case in which the
      jurisdictional challenge implicates the merits of the plaintiffs’ cause of
      action and the plea to the jurisdiction includes evidence, the trial court
      reviews the relevant evidence to determine if a fact issue exists. The
      United States Supreme Court and all of the federal circuits have
      authorized federal district courts to consider evidence in deciding
      motions to dismiss for lack of subject matter jurisdiction. If the
      evidence creates a fact question regarding the jurisdictional issue,

            immediate danger of damage to property or injury to persons; (2)
            substantially obstructs law enforcement or other governmental
            functions or services; or (3) by force, threat of force, or physical
            action deprives any person of a legal right or disturbs any person in
            the enjoyment of a legal right.

      TEX. PENAL CODE § 42.02 (West 2016). We decline to import this
      definition from the Penal Code into the TTCA. The legislature could have
      incorporated the Penal Code’s definition of “riot” by reference, or it could
      have added those words of the definition to the TTCA, but it did not, and
      we will not graft that definition into the TTCA. See, e.g., Invesco. Inv.
      Servs., Inc. v. Fid. Deposit & Dis. Bank, 355 S.W.3d 257, 261 (Tex.
      App.—Houston [1st Dist.] 2011, no pet.) (declining to use term defined in
      one section of finance code in another unrelated section). Instead, we will
      give the term its plain and ordinary meaning. See Watson v. State, 369
      S.W.3d 865, 870 (Tex. Crim. App. 2012).
                                          18
      then the trial court cannot grant the plea to the jurisdiction, and the
      fact issue will be resolved by the fact finder. However, if the relevant
      evidence is undisputed or fails to raise a fact question on the
      jurisdictional issue, the trial court rules on the plea to the jurisdiction
      as a matter of law.

      We acknowledge that this standard generally mirrors that of a
      summary judgment under Texas Rule of Civil Procedure 166a(c). We
      adhere to the fundamental precept that a court must not proceed on the
      merits of a case until legitimate challenges to its jurisdiction have
      been decided. This standard accomplishes this goal and more. It also
      protects the interests of the state and the injured claimants in cases
      like this one, in which the determination of the subject matter
      jurisdiction of the court implicates the merits of the parties’ cause of
      action. The standard allows the state in a timely manner to extricate
      itself from litigation if it is truly immune. However, by reserving for
      the fact finder the resolution of disputed jurisdictional facts that
      implicate the merits of the claim or defense, we preserve the parties'
      right to present the merits of their case at trial. Similar to the purpose
      of a plea to the jurisdiction, which is to defeat a cause of action for
      which the state has not waived sovereign immunity (usually before the
      state has incurred the full costs of litigation), the purpose of summary
      judgments in Texas is “‘to eliminate patently unmeritorious claims
      and untenable defenses.’” By requiring the state to meet the
      summary judgment standard of proof in cases like this one, we
      protect the plaintiffs from having to “put on their case simply to
      establish jurisdiction.” Instead, after the state asserts and supports
      with evidence that the trial court lacks subject matter jurisdiction,
      we simply require the plaintiffs, when the facts underlying the
      merits and subject matter jurisdiction are intertwined, to show that
      there is a disputed material fact regarding the jurisdictional issue.

Miranda, 133 S.W.3d at 227–28 (internal citations omitted) (emphasis added).

      We agree with Rangel that there is a disputed, material fact regarding the

jurisdictional issue of whether an emergency or riot existed at the time of Rangel’s

injury. TDCJ’s self-serving conclusion that an emergency or riot existed is not


                                          19
conclusive. Cf., City of Hous. v. Davis, No. 01-13-00600-CV, 2014 WL 1678907,

at *5 (Tex. App—Houston [1st Dist.] Apr. 24, 2014, pet. denied) (memo op.)

(stating that defendant’s failure to use term “emergency” to describe situation did

not preclude existence of emergency). Instead, we look at all of the evidence

presented in support of the plea to the jurisdiction to determine whether the

existence of an emergency/riot was undisputed or whether Rangel raised a fact-

issue regarding TDCJ’s asserted emergency/riot defense.

      TDCJ points out that two groups of inmates refused to return to their bunks

for the night and were engaged in a verbal altercation. They were using vulgar

language and threatening to fight. TDCJ considered this disturbance to be a riot or

emergency. When the inmates refused to return to their bunks, TDCJ officials

brought in a gas gun, gas ammunition, and camera as a show of force. The inmates

began gesturing to one another by striking their closed fists in the palms of their

hands. One offender said, “You might as well bust the gas because as soon as you

leave, we gonna fight. Otherwise you will have to stand here between us all night.

We ain’t gonna rack up otherwise.”

      Waller then went to the duty warden to get permission to use the gas gun. He

discussed the situation with the duty warden for 15 to 20 minutes before obtaining

such authorization. After repeated orders to return to their bunks along with




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threats of chemical discharge, Waller discharged the weapon when the inmates

refused to comply. All offenders finally lay down on the ground.

      Rangel points out that Waller and the duty warden spent 15 to 20 minutes to

discuss the situation and that none of the inmates committed an act of violence

either toward the prison employees or one another. Both factors, Rangel contends,

support a conclusion that there was no emergency or riot. Rangel also argues that a

factfinder watching the videotape of the altercation could reasonably conclude that

no emergency or riot was taking place.

      We agree that the evidence presented does not prove the existence of an

emergency or a riot as a matter of law. Indeed, what might be considered an

emergency/riot if it took place in a public park might be considerably more routine

in a prison setting. Based on the evidence before the trial court, a factfinder could

determine that, even if the guard’s act in discharging the gas gun was completely

appropriate, there was still no emergency or riot because TDCJ had control over

the situation.

      Because there is a disputed jurisdictional fact issue—the existence of an

emergency or riot—the trial court did not err in denying TDCJ’s plea to the

jurisdiction.

      We overrule issue one.




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                                  CONCLUSION

      Because Rangel’s pleadings allege a “use” of tangible personal property, the

intentional-tort exception to the TTCA does not bar Rangel’s negligence claim,

and there is a jurisdictional fact question regarding application of the emergency

and riot exceptions to the TTCA, the trial court did not err in denying TDCJ’s plea

to the jurisdiction. Accordingly, we affirm the trial court’s interlocutory order.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




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