
OPINION
No. 04-03-00021-CV
Ralph LÓPEZ, Sheriff and Bexar County, Texas,
Appellants
v.
Donna MCMILLION and Gary McMillion,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-15015
Honorable David A. Berchelmann, Judge Presiding
Opinion by:	Catherine Stone, Justice
Sitting:	Catherine Stone, Justice
		Sarah B. Duncan, Justice
		Karen Angelini, Justice
Delivered and Filed:	June 11, 2003
REVERSED AND RENDERED
	This is an appeal from an order denying a plea to the jurisdiction filed by a governmental unit.
Donna and Gary McMillion brought a negligence suit against Bexar County and Bexar County Sheriff
Ralph López (collectively "Bexar County") under the Texas Tort Claims Act ("TTCA"), when Donna
McMillion was injured by inmate Jimmy Ray Gorman during his escape from custody.  Bexar County
filed a plea to the jurisdiction asserting sovereign immunity. The trial court denied the motion, and
Bexar County filed this interlocutory appeal.  We reverse the trial court's order and render judgment
dismissing the cause for lack of subject matter jurisdiction.
Background	On June 25, 2002, Bexar County Sheriff's Deputy Eric Gomez transported Gorman to the
University Health System Brady Green Clinic for medical treatment.  Upon reaching the clinic,
Deputy Gomez removed Gorman's restraints and permitted him to use the clinic's restroom.  Deputy
Gorman neither accompanied Gorman to the restroom nor  placed any other restraints on Gorman's
hands or feet.  Gorman subsequently escaped the clinic through a bathroom window.  Once free,
Gorman stole a vehicle and drove to the McMillions' home.  Gorman posed as a delivery person and
gained entry to the McMillions' residence, where he proceeded to rob them.  During the course of
the robbery, Gorman bound and gagged Donna McMillion, threatened her with a gun, and severely
beat her.

	The McMillions filed suit against Bexar County asserting negligence claims under the TTCA.
As a basis for Bexar County's liability, the McMillions alleged Deputy Gomez was negligent because
he: (1) failed to use tangible personal property, i.e., handcuffs and shackles, to restrain Gorman; (2)
allowed Gorman to use the clinic's bathroom door to exclude the Deputy from the bathroom during
his escape; (3) failed to supervise Gorman while outside the confines of the Bexar County Jail; and
(4) "furnished Gorman with inadequate and/or defective tangible personal property in the form of
restraints." (1)  In response to the McMillions' amended petition, Bexar County filed a plea to the
jurisdiction asserting sovereign immunity.  Specifically, Bexar County argued that the McMillions'
allegations do not state a claim against it for which the TTCA waives sovereign immunity.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).  The trial court denied the plea to the
jurisdiction, and Bexar County filed this interlocutory appeal.  See id. § 51.014(a)(8) (Vernon Supp.
2003).
 Plea to the Jurisdiction
	In its sole issue, Bexar County contends the trial court erred in denying its plea to the
jurisdiction because the McMillions did not assert a claim that waives immunity from suit under the
TTCA.  A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to
determine the subject matter of the action.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000).  The party suing the governmental entity bears the burden of affirmatively showing that
the trial court has jurisdiction to hear the cause.  Tex. Dept. of Criminal Justice v. Miller, 51 S.W.3d
583, 587 (Tex. 2001).  Importantly, "[m]ere reference to the [TTCA] does not establish the state's
consent to be sued and thus is not enough to confer jurisdiction on the trial court."  Id.
	We review a trial court's ruling on a plea to jurisdiction under a de novo standard.  Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  In determining whether jurisdiction exists,
we accept the allegations in the pleadings as true and construe them in favor of the pleader.  Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We are not required to look
solely to the pleadings when deciding a plea to the jurisdiction; we may consider evidence relevant
to jurisdiction when it is necessary to resolve the jurisdictional issue raised.  Blue, 34 S.W.3d at 555.Texas Tort Claims Act	The TTCA provides a limited waiver of sovereign immunity under certain narrowly defined
circumstances.  Miller, 51 S.W.3d at 587.  The statute allows for governmental liability in three
general areas: (1) use of publicly owned automobiles; (2) premises defects; and (3) injuries arising
out of conditions or use of property.  Tex. Dept. of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).
The TTCA provides that a governmental unit is liable for:
	  (1) 	property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if: 
	  	(A)  	the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven
equipment; and 

	 	the employee would be personally liable to the claimant according to
Texas  law; and 

	  (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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).  
	In the present case, the McMillions allege waiver under subsection two of the statute.  See
id. § 101.021(2).  Therefore, to state a claim, the McMillions must allege: (1) some use or misuse of
tangible personal or real property; and (2) their personal injuries were proximately caused by the use
or misuse of such property.  Dallas County Mental Health & Mental Retardation v. Bossley, 968
S.W.2d 339, 343 (Tex. 1998).  The word  "use" means "to put or bring into action or service; to
employ for or apply to a given purpose."  Miller, 51 S.W.3d at 588.  Claims involving a failure to use,
or the non-use of property, are not within the waiver of sovereign immunity.  Id. at 587-88.  With
respect to causation, a party must show more than mere involvement of property.   Bossley, 968
S.W.2d at 343.  
Analysis	The McMillions sued Bexar County alleging that the County's negligence allowed a
dangerous criminal to escape custody and terrorize them.  The McMillions claim their pleadings are
sufficient to waive sovereign immunity under section 101.021(2) because their theory of liability is
based on the use/misuse of real and personal property.  Specifically, the McMillions allege  sovereign
immunity is waived because they claim Bexar County was negligent in: (1) failing to use tangible
personal property, i.e., handcuffs and shackles, to restrain Gorman; (2) "furnishing Gorman with
inadequate and/or defective tangible personal property in the form of restraints"; (3) allowing Gorman
to use the Clinic's bathroom door to facilitate his escape from the clinic; and (4) failing to supervise
Gorman while outside the confines of the Bexar County Jail. 
Use/Non-Use of Physical Restraints
	The McMillions contend sovereign immunity is waived because they alleged Deputy Gomez's
non-use of handcuffs and shackles proximately caused their injuries.   The non-use of property,
however, does not waive sovereign immunity.  Miller, 51 S.W.3d at 587-88; Kerrville State Hosp.
v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994).
Therefore, the McMillions' non-use allegation is insufficient to waive sovereign immunity. 
	The McMillions argue that their case is analogous to Lowe v. Texas Tech University, 540
S.W.2d 297 (Tex. 1976) and Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex.
1989).  In Lowe,  Lowe suffered a knee injury while playing football for the university after a coach
ordered him to remove his knee brace and reenter a game without it.  Lowe, 540 S.W.2d at 298.  The
Supreme Court determined that Lowe's knee brace was as an integral part of his uniform as his
helmet or shoulder pads.  Id. at 300.  The court therefore held that the State waived immunity by
providing Lowe with a defective uniform, i.e., a uniform without a knee brace.  Id. 
	In Robinson, MHMR employees took several patients to swim at a lake.  Robinson, 780
S.W.2d at 169.  MHMR was aware that Robinson suffered from epileptic seizures that occasionally
caused him to lose consciousness.  Id.  MHMR failed to furnish Robinson with a life preserver, and
Robinson subsequently drowned.  Id.   The Supreme Court concluded that "[a] life preserver was just
as much a part of Robinson's swimming attire as the knee brace was part of the uniform in Lowe."
Id. at 171.  Thus, the court held MHMR waived its immunity.  Id. 
 We believe the McMillions incorrectly analogize this case to Lowe and Robinson.  The
Supreme Court has expressly stated that "[t]he precedential value of these cases is . . . limited to
claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety
component and that the lack of this integral component led to the plaintiff's injuries." Clark, 923
S.W.2d at 585. Although the McMillions' amended petition also claims Deputy Gomez was negligent
"in furnishing Gorman with inadequate and/or defective tangible personal property in the form of
restraints," the gravamen of their "restraint" complaint is that Deputy Gomez's non-use of restraints
led to their injuries.  Therefore, the McMillions' reliance on Lowe and Robinson is misplaced, (2)  and
their allegation regarding the "furnishing of defective restraints" is insufficient to waive sovereign
immunity. 
	The McMillions also rely on University of Texas Medical Branch Hospital at Galveston v.
Hardy, 2 S.W.3d 607 (Tex. App.--Houston [14th Dist.] 1999, pet. denied), in support of their
"restraint" complaint.  The McMillions' reliance on Hardy is equally misplaced because Hardy
concerns the use/misuse of property.  In Hardy, one of the hospital's patients was connected to a
cardiac monitor to monitor her heart following bypass surgery.  Hardy, 2 S.W.3d at 608.
Unfortunately, the hospital failed to pay proper attention to the patient's cardiac monitor.  Id. at 608-09.  When the monitor signaled that the patient was having heart complications, hospital staff failed
to respond in a timely manner.  Id.  The patient subsequently died of the injuries she sustained as a
result of the hospital's untimely response to her monitor.  Id. at 609.  The Hardy court determined
that the "hospital's decision to put the cardiac monitor into service for the purpose of monitoring
decedent's heart, and the hospital employee's subsequent failure to pay proper attention to the
monitor, constitute a use or misuse, of tangible personal property."  Id. at 610.  As previously
discussed, the essence of the McMillions' "restraint" complaint is the non-use of  property; therefore,
Hardy is distinguishable. 
Use/Misuse of the Bathroom Door
	The McMillions also contend they established a waiver of sovereign immunity by claiming a
use of real property.  Specifically, the McMillions allege "the bathroom where Gorman made his
escape, furnished the situs of the negligent act, and that use of the door to exclude the Deputy, was
a use or condition of real property, which led to plaintiffs' injuries."  At oral argument, however, the
McMillions acknowledged that this argument is untenable in light of the ruling in Bossley.
	In Bossley, a mentally ill patient escaped through unlocked hospital doors.  Bossley, 968
S.W.2d at 340-41.  After escaping, the patient committed suicide by throwing himself in front of a
truck.  Id. at 341.  The Supreme Court concluded that neither the use of property (unlocking of the
hospital doors) nor the condition of property (the unlocked door) caused the patient's suicide.  Id.
at 343.  The court stated the doors may have furnished the condition that made the injury possible
by permitting the patient to escape into the community where he committed suicide, but "the use and
condition of the doors were too attenuated from [the patient's] death to be said to have caused it."
Id. 
	Likewise, the use of the bathroom door in this case may have furnished the condition that
made the McMillions' injuries possible, but the use of the door was too attenuated from their injuries
to be said to have caused them.  The use of the bathroom door permitted Gorman to escape the clinic,
but it was Gorman's assault and robbery that caused the McMillions' injuries. Therefore, the
McMillions' "bathroom door" allegation is insufficient to waive sovereign immunity.  
Negligent Supervision
	Finally, to the extent the McMillions assert that immunity is waived by Deputy Gomez's
failure to supervise Gorman outside the confines of the Bexar County Jail, this argument does not
invoke the TTCA's waiver provision.  Lacy v. Rusk State Hosp., 31 S.W.3d 625, 630 (Tex.
App.--Tyler 2000, no pet.) (holding claims of negligent supervision are not actionable under the
TTCA). 
Conclusion Based on the foregoing, we conclude the McMillions' allegations do not state a claim against
Bexar County for which the TTCA waives sovereign immunity.  Consequently, we sustain Bexar
County's sole issue, and we reverse the trial court's order denying Bexar County's plea to the
jurisdiction and render judgment dismissing the suit against Bexar County.


							Catherine Stone, Justice


1.  The McMillions' amended petition contains additional enumerated allegations that do not vary substantively
from the allegations presented above.
2.  We note the McMillions' brief also cites Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.
1975).  This case, however, is inapplicable because it too applies only to claims in which a plaintiff alleges that a state
actor has provided property that lacks an integral safety component and that the lack of this integral component led
to the plaintiff's injuries.  

