                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00102-CV

PHILLIP SMALLWOOD,
                                                             Appellant
v.

THE STATE OF TEXAS, ET AL.,
                                                             Appellees



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 23,005


                           MEMORANDUM OPINION


       Phillip Smallwood, a Texas inmate, sued the Texas Department of Criminal

Justice for injuries sustained while working with a metal cutting machine. The trial

court granted TDCJ’s plea to the jurisdiction. On appeal, Smallwood challenges the

dismissal of his lawsuit for lack of subject matter jurisdiction. We affirm.

                               STANDARD OF REVIEW

       A plea to the jurisdiction challenges the trial court’s “power to determine the

subject matter of the suit.” Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex.
App.—Waco 2002, pet. withdrawn). We review a plea “based on sovereign immunity

de novo because the question of whether a court has subject matter jurisdiction is a

matter of law.” Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); see Vela, 69 S.W.3d

at 698.    Where “the pleading requirement has been met and evidence has been

submitted to support the plea that implicates the merits of the case, we take as true all

evidence favorable to the nonmovant.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 228 (Tex. 2004) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997)). “We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” Id.

                                      ANALYSIS

       In one issue, Smallwood contends that the trial court improperly granted TDCJ’s

plea to the jurisdiction because his claim falls within the waiver of immunity provided

by section 101.021 of the Civil Practice and Remedies Code.

       “[S]overeign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the

state consents to suit.” Miranda, 133 S.W.3d at 224. The Tort Claims Act waives a

governmental entity’s sovereign immunity for the following areas of liability: (1)

injuries arising from the “operation or use of a motor-driven vehicle or motor-driven

equipment;” (2) injuries “caused by a condition or use of tangible personal or real

property;” and (3) injuries caused by a premises defect. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 101.021-.022 (Vernon 2005 & Supp. 2009).




Smallwood v. State                                                                 Page 2
        In his first amended petition, Smallwood alleged that he and another inmate

were operating a metal cutting machine when the activated blade severed his thumb

and some fingers. Smallwood alleged that this injury was caused by: (1) an excessive

workload; (2) lack of supervision; (3) a “self-taught” work environment; (4) general

training that failed to cover “dangers and safety precautions;” (5) removal of safety

devices from the machine; (6) the transferring of inmates in and out of the work area; (7)

inadequate training; (8) lack of safety shielding on the back of the machine; (9) denial of

his request for a “safety cage;” (10) the absence of safety devices and warnings on the

machine; (11) inexperience of the inmate assisting him with the machine; (12) lack of

access to a safety device; and (13) absence of a turn-off switch.1

        On appeal, Smallwood contends that his injury arises from a condition or use of

tangible personal property because (1) the machine was defective, as safety devices had

been removed; and (2) TDCJ employees misused the machine, as the machine was

improperly installed and inmates were improperly trained and supervised.2 See TEX.

CIV. PRAC. & REM. CODE ANN. § 101.021(2).

        It is undisputed that, at the time of Smallwood’s injury, he and another inmate

were using the machine. When there is an “absence of use by a government employee,

1
        Smallwood also alleged that the infirmary was ill-equipped to handle his injury, his injury was
not properly treated, and he had no choice as to the medical facility to which he was transferred or the
physicians who treated him. He does not argue that these allegations waive TDCJ’s sovereign immunity.
2
          The parties engage in some discussion of section 101.029 of the Civil Practice and Remedies Code.
Under section 101.029, immunity may be waived for injuries caused by an inmate’s operation or use of a
motor-driven vehicle or motor-driven equipment. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.029(a)(1) (Vernon 2005). Smallwood does not argue that his injuries arise from the operation or use of
motor-driven equipment. Moreover, section 101.029 does not apply to injuries sustained by inmates. See
id. at § 101.029(d).



Smallwood v. State                                                                                  Page 3
a state agency is liable only if a state actor provided property lacking an integral safety

component that led to the plaintiff’s injuries.” Tex. Dep’t of Family & Protective Servs. v.

Atwood, 176 S.W.3d 522, 529 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see San

Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245-46 (Tex. 2004).

       In Texas A & M University v. Bishop, 156 S.W.3d 580 (Tex. 2005), Bishop was acting

in a university play when another actor stabbed him in the chest, missing the stab pad.

See Bishop, 156 S.W.3d at 581. Bishop argued that the University provided equipment

lacking an integral safety component, an adequate stab pad. Id. at 584. The Supreme

Court rejected this argument, explaining that its previous holdings in Robinson v. Central

Texas MHMR Center, 780 S.W.2d 169 (Tex. 1989) (swimming attire without life

preserver), Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976) (football uniform

without knee brace), and Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.

1975) (hospital bed without bed rails) should be applied “narrowly only when an

integral safety component is entirely lacking rather than merely inadequate:”

       In Clark3, we held that prescribing a medication less effective than an
       alternative treatment would have been does not mean that the medicine
       provided lacked an integral safety component. We distinguished Lowe
       and Robinson, explaining:

               For Lowe to apply . . . we must assume that the university
               would have waived its immunity even if it had provided
               Lowe with a knee brace as long as Lowe could show that
               another type of knee brace would have better protected him.
               Likewise, for Robinson to apply, we must assume that
               MHMR would have waived its sovereign immunity even if
               it had provided Robinson a life preserver if Robinson could


3      Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996).



Smallwood v. State                                                                    Page 4
               show that MHMR should have provided him with a better
               one.

       We determined that, in deciding Lowe and Robinson, we did not intend to
       allow both use and non-use (i.e., failure to provide a more effective safety
       feature) to effect a waiver of immunity under the Act. Similarly, Bishop’s
       claim that the knife was inherently unsafe without an adequate stab pad
       does not mean that an integral safety component was lacking for purposes
       of governmental waiver under the Act.

Id. (internal citations and footnotes omitted). Immunity was not waived. See id.

       In City of Pasadena v. Thomas, 263 S.W.3d 43 (Tex. App.—Houston [1st Dist.] 2006,

no pet.), Thomas was injured while using a machete furnished by a City supervisor. See

Thomas, 263 S.W.3d at 44-45. Thomas alleged that the City failed to provide protective

gloves and the machete “had no guard on the handle to protect one’s hand from sliding

easily from the handle and over the blade.” Id. at 46. The First Court held:

       [T]he allegations in this case do not demonstrate a waiver of
       governmental immunity. Thus, assuming that a machete with a hilt may
       be safer than one without a hilt, Bishop II4 would not espouse the
       conclusion that a hilt is “an integral safety component,” even given that a
       machete is dangerous for the very reason that it is sharp.

Id. at 47 (internal citations omitted).

       In Harris v. Texas Department of Criminal Justice, No. 12-03-00363-CV, 2004 Tex.

App. LEXIS 4870 (Tex. App.—Tyler May 28, 2004, no pet.) (mem.op.), Harris’s finger

was severed by a steam press he was operating. Harris, 2004 Tex. App. LEXIS 4870, at

*1.   Harris argued that the press was “defective in that it lacked proper safety

equipment.” Id. at *5. Although the press had a safety feature, Harris argued that the



4      In Bishop I, the Supreme Court held that the drama club’s faculty advisors were TAMU
employees at the time of the injury. See Bishop v. Texas A&M Univ., 35 S.W.3d 605, 607 (Tex. 2000).


Smallwood v. State                                                                          Page 5
press lacked a “safety device to prevent an injury such as he suffered were the press to

engage on its own.” Id. at *7. The Tyler Court construed this argument to allege that

the “safety component present was not as effective as an alternate safety component

might have been.” Id. Immunity was not waived. See id. at *11.

       In this case, to support its plea to the jurisdiction, TDCJ provided evidence

showing that the machine was equipped with safety features.          In his deposition,

Smallwood acknowledged that TDCJ added a kill switch to the front of the machine.

He further acknowledged that TDCJ modified the machine so that a steel pin could be

inserted, which prevented the ram from falling. When the pin is in place, the machine

cannot be activated. Finally, Smallwood admitted that a kill switch or plug is also

located on the back of the machine.       He assumed that when TDCJ modified the

machine, this switch became inoperable. He never tested the switch or asked whether

the switch still worked.    In an affidavit, the prison plant manager stated that the

machine has five safety features, including a lock-out block, which was functioning

properly at the time of the accident, on the back of the machine.

       Because the machine was equipped with safety features, all that remains of

Smallwood’s argument is that these features were inadequate.         TDCJ’s failure to

provide better safety devices and warnings does not establish that the machine was

defective for lack of an integral safety component; thus, immunity is not waived under

section 101.021(2). See Bishop, 156 S.W.3d at 584; see also Thomas, 263 S.W.3d at 47;

Harris, 2004 Tex. App. LEXIS 4870, at *7; State Dep’t of Pub. Safety v. Petta, 44 S.W.3d




Smallwood v. State                                                                Page 6
575, 580-81 (Tex. 2001) (Section 101.021(2) does not waive immunity for the use, non-

use, or misuse of information).

       Nor do Smallwood’s complaints that inmates were negligently supervised or

trained state a claim for condition or use of property. See Univ. of Tex. Health Sci. Ctr. v.

Schroeder, 190 S.W.3d 102, 107 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also City

of Waco v. Williams, 209 S.W.3d 216, 224-25 (Tex. App.—Waco 2006, pet. denied).

       Finally, Smallwood argues that the workload, shifting work schedules, and

oversight created a dangerous work environment that fostered “careless and negligent

use and misuse of the very dangerous cutting machines.” Again, Smallwood has not

established a use or misuse of tangible property by TDCJ employees; thus, this

argument does not bring his claims within the ambit of section 101.021(2). See Cowan,

128 S.W.3d at 246 (“A governmental unit does not ‘use’ personal property merely by

allowing someone else to use it and nothing more.”).

       In summary, we hold that immunity is not waived under section 101.021(2). The

trial court properly granted TDCJ’s plea to the jurisdiction. We overrule Smallwood’s

sole issue and affirm the trial court’s judgment.




                                                         FELIPE REYNA
                                                         Justice




Smallwood v. State                                                                     Page 7
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting with note)*
Affirmed
Opinion delivered and filed September 1, 2010
[CV06]

*      (Chief Justice Gray dissents. A separate opinion will not issue.).




Smallwood v. State                                                          Page 8
