                                  NO. 07-11-00376-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C


                                  OCTOBER 22, 2012


                           BILLY RAY JONES, APPELLANT

                                            v.

                    LUBBOCK COUNTY WATER CONTROL AND
                    IMPROVEMENT DISTRICT NO. 1, APPELLEE


            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2011-556,771; HONORABLE RUBEN GONZALES REYES, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

      Appellant, Billy Ray Jones, appeals from the trial court’s dismissal of his lawsuit

after granting a plea to the jurisdiction filed by appellee, Lubbock County Water Control

and Improvement District No. 1. We will affirm the judgment of the trial court.


                          Factual and Procedural Background


      On November 10, 2010, Jones was performing community service as a volunteer

assigned to work for the Water District. The task that Jones undertook to perform that

day was to rake a pile of smoldering wood and brush that had been burning for several
days. Jones contends that he was provided with a rake and a hoe to perform the task

at hand. The Water District contests whether the record supports this fact. As a result

of working on the pile of smoldering wood while wearing tennis shoes, Jones suffered

burns to his feet. Jones filed suit alleging that the Water District failed to provide him

with proper safety training and instruction or proper safety equipment or protective

clothing. Jones sued under a negligence theory for compensatory damages.


       The Water District filed a plea to the jurisdiction of the trial court that alleged that,

as a local governmental unit, the Water District enjoyed governmental immunity from

both suit and liability. The trial court conducted a hearing on the Water District’s plea to

the jurisdiction and granted the same. Subsequently, the trial court entered an order

granting the plea to the jurisdiction and ordering that Jones’s cause of action be

dismissed with prejudice.


       Jones gave notice of appeal and brings forth a single issue to this Court. Jones

contends that the Water District waived its governmental immunity by failing to provide

him with any safety equipment or protective clothing. Disagreeing with Jones, we will

affirm the judgment of the trial court.


                                    Standard of Review


       A plea to the jurisdiction is a dilatory plea that challenges the trial court’s

jurisdiction to hear the subject matter of the lawsuit. Timmons v. Univ. Med. Ctr., 331

S.W.3d 840, 843 (Tex.App.—Amarillo 2011, no pet.) (citing Harris Cnty. v. Sykes, 136

S.W.3d 635, 638 (Tex. 2004)). Subject matter jurisdiction is essential for a trial court to

decide a case. Ackers v. City of Lubbock, 253 S.W.3d 770, 773 (Tex.App.—Amarillo
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2007, pet. denied). The question of whether a court has subject matter jurisdiction is a

question of law that we review de novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625

(Tex. 2010). We recognize that, if the plea to the jurisdiction challenges the existence

of jurisdictional facts, we consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issue raised. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 227 (Tex. 2004). However, 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. We will review the

pleadings of the party asserting jurisdiction in the light most favorable to the trial court

having jurisdiction. See Leach v. Tex. Tech Univ., 335 S.W.3d 386, 391 (Tex.App.—

Amarillo 2011, pet. denied).


                                       Applicable Law


       Both parties recognize that the Water District is a political subdivision of the State

of Texas. Political subdivisions within the State of Texas enjoy governmental immunity,

which protects them from lawsuits for damages. Harris Cnty. Hosp. Dist. v. Tomball

Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Governmental immunity involves two

issues: whether the State has consented to suit, and whether the State has accepted

liability. Id. Immunity from suit is jurisdictional and bars suit. Id. A statute shall not be

construed to waive immunity unless the waiver is effected by clear and unambiguous

language. TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2012).




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                                         Analysis


      Jones brings his cause of action against the Water District under the Texas Tort

Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). 1 Jones

contends that section 101.021(2) is both a clear and unambiguous waiver of

governmental immunity, and is applicable to the facts as alleged in the original petition.

The Water District does not contest that section 101.021(2) is a clear and unambiguous

waiver of immunity.    Rather, the Water District’s position is that the section is not

applicable to the cause of action as pled by Jones.


      Section 101.021 states, in relevant part:


      A governmental unit in the state is liable for:
      (2) 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.
      The question of the use of tangible personal property in connection with a section

101.021(2) tort action has been the subject of numerous Texas Supreme Court

decisions.   Jones cites the Court to two of the earliest decisions to support his

contention that section 101.021(2)’s waiver of immunity is applicable to the facts

presented in this case. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976);

Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989). Lowe was a suit

by a former football player at the university who was injured while playing a game after

having been sent back in the game without a protective knee brace. Lowe, 540 S.W.2d

at 300. In Robinson, the action complained of was the failure to furnish Robinson with a

      1
        Further reference to the Texas Civil Practices & Remedies Code will be by
reference to “Section ___,” “section ____” or “§ ____.”
                                             4
life preserver while on a swimming outing, even though MHMR knew that Robinson

suffered from epileptic seizures that could result in Robinson becoming unconscious.

Robinson, 780 S.W.2d at 169.          These cases came under scrutiny in the case of

Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584-85 (Tex. 1996), where the Court

held that Lowe and Robinson represented “the outer bounds of what we have defined

as use of tangible personal property.” Id. Kerrville arose when a state hospital used an

oral form of drug to treat a patient who had a history of non-compliance with

medications instead of an injection form of the psychotropic drug. Id. at 584. The Court

went on to explain that, in deciding the earlier cases, it was not the intent of the Court to

allow both use and nonuse of property to result in a waiver of immunity. Id. at 585.

Consequently, the Court held that the precedential value of the Lowe and Robinson

cases was limited to situations where the claimant alleged that the “state actor has

provided property that lacks an integral safety component” which led to the claimant’s

injuries. Id.


       It is into this narrow window of waiver of immunity that Jones contends his action

fits. We conclude that Jones’s contention must fail for two reasons. First, a review of

the live pleadings reveals that Jones did not contend that the Water District provided

property that lacked an integral safety component. Rather, the live pleading simply

alleges that the Water District failed to provide safety training or instruction and, further,

that Jones was furnished no protective clothing or equipment. See Leach, 335 S.W.3d

at 391. Simply put, the pleadings do not allege facts that overcome the Water District’s

plea to the jurisdiction. See Miranda, 133 S.W.3d at 227.


                                              5
        In his brief and at oral arguments, Jones argues that, during the discovery

process, other facts were developed that showed that the Water District provided a rake

and a hoe for Jones’s use in raking the embers of the brush pile. The Water District

hotly disputes that these were facts before the trial judge. For purposes of this opinion,

we need not decide this issue but rather will accept Jones’s proposition that the facts

were before the trial court in the remaining portion of our analysis.


        Even when we accept these facts, Jones’s action still fails for the second reason.

There is nothing in the record that would lead us to agree with Jones’s argument that

boots were an integral safety component of the equipment furnished by the Water

District. Kerrville, 923 S.W.2d at 585. There is simply nothing in the record before us to

demonstrate how boots are an integral safety component of a rake or hoe.               The

simplest definition of integral is an adjective meaning “essential to completeness,” or

“formed as a unit with another part.” MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 650

(11th ed. 2003). We fail to see how boots are an integral safety component of a rake or

hoe. Rather, in the final analysis, Jones is complaining of the failure of the Water

District to furnish him boots. As such, we are faced with a situation that the Texas

Supreme Court has determined is a nonuse of property. See City of N. Richland Hills,

Tex. v. Friend, 370 S.W.3d 369, 372 (Tex. 2012). A nonuse of property is not sufficient

to invoke section 101.021(2) as a waiver of governmental immunity.          Id.   If it did,

governmental immunity would be rendered a nullity. Id. (citing Kerrville, 923 S.W.2d at

586).




                                             6
      Finally, in his brief Jones raises a safe workplace argument under the Texas

Labor Code. See TEX. LAB. CODE ANN. § 411.103(2) (West 2006). However, a review of

the record before us reveals that Jones did not present this argument to the trial court.

Accordingly, we decline to address the issue. See TEX. R. APP. P. 33.1(a).


                                      Conclusion


      Having overruled Jones’s issue, we affirm the judgment of the trial court.




                                               Mackey K. Hancock
                                                   Justice




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