                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00065-CV

ARTURO SOLIS,
                                                             Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                    Appellee


                           From the 52nd District Court
                              Coryell County, Texas
                           Trial Court No. C10-07-37258


                           MEMORANDUM OPINION


       Arturo Solis appeals the trial court‖s granting the Texas Department of Criminal

Justice – Institutional Division‖s plea to the jurisdiction and dismissing his lawsuit with

prejudice against refiling. Solis filed suit against TDCJ pursuant to the Texas Tort

Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2) (Vernon 2005). Solis

contended that an employee at the prison gave him a contaminated razor with which he

was forced to use to shave, resulting in his contracting at least two illnesses, hepatitis C

and herpes. TDCJ filed a plea to the jurisdiction and motion to dismiss based on

sovereign immunity. Because we find that the trial court did not err in granting the
plea to the jurisdiction and dismissing with prejudice to refiling, we affirm the

judgment of the trial court.

Waiver of Sovereign Immunity

         Solis complains that the trial court abused its discretion in dismissing his case for

failure to establish a waiver of sovereign immunity in his pleadings.             “Absent an

express waiver of its sovereign immunity, the State is generally immune from suit.”

State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). That immunity deprives the courts of

subject matter jurisdiction over suits against the state or its subdivisions.         State v.

Shumake, 199 S.W.3d 279, 283 (Tex. 2006). Because subject matter jurisdiction presents a

question of law, we review the trial court's decision to grant a plea to the jurisdiction de

novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

         In reviewing a plea to the jurisdiction, we review the pleadings and any evidence

relevant to the jurisdictional issue. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583,

587 (Tex. 2001). The party suing the governmental entity must establish the State's

consent, which may be alleged either by reference to a statute or to express legislative

permission. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). In considering

the jurisdictional allegations contained in a petition, they are to be construed liberally in

the plaintiff's favor. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993).

         The Texas Tort Claims Act provides a limited waiver of sovereign immunity

when personal injury is “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

Solis v. TDCJ                                                                            Page 2
claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)

(Vernon 2005). To sue the State for a tort, the pleadings must state a claim under the

Act. Jones, 8 S.W.3d at 639.

Condition

        A governmental unit may waive immunity under the “condition” of tangible

personal property portion of section 101.021(2) if it provides equipment that is defective

because it lacks an integral safety component. See, e.g., Robinson v. Cent. Tex. MHMR

Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (swimming attire provided by state not containing

life preserver lacked integral safety component, and this condition of tangible personal

property triggered waiver of immunity); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300

(Tex. 1976) (football uniform provided by university without knee brace lacked integral

safety component, and this condition of tangible personal property triggered waiver of

immunity); Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (hospital

bed provided by hospital without bed rails lacked integral safety component, and this

condition of tangible personal property triggered waiver of immunity); Hampton v.

Univ. of Tex.--M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 631 (Tex. App.—Houston [1st

Dist.] 1999, no pet.) (hospital bed provided by hospital with bed rails that were not

activated by hospital lacked integral safety component, and this condition of tangible

personal property triggered waiver of immunity); Tex. Dep't of MHMR v. McClain, 947

S.W.2d 694, 697 (Tex. App.—Austin 1997, writ denied) (lockers and wheelchair

provided by hospital lacked integral safety component, and these conditions of tangible

personal property triggered waiver of immunity); McBride v. Tex. Dep't of Criminal

Solis v. TDCJ                                                                       Page 3
Justice, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.) (barrel provided by prison

without handles lacked integral safety component, and this condition of tangible

personal property triggered a waiver of immunity). Solis makes no contention in his

pleadings that there was any integral safety component missing from the contaminated

razor.

          Further, to the extent Solis alleges that the razor was unsterile or contaminated

and led to his illnesses, we disagree that “condition” is such as is contemplated by the

Act. This argument in actuality is that the item merely furnished the condition that

made the injury possible and is insufficient to meet the causation requirement for

immunity to be waived. McClain v. Univ. of Tex. Health Ctr., 119 S.W.3d 4, 10-11 (citing

Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.

1998)).

Use

          “Use” means “to put or bring into action or service; to employ for or apply to a

given purpose.” Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001).

“A governmental unit does not ―use‖ personal property merely by allowing someone

else to use it and nothing more. If all ―use‖ meant were ―to make available,‖ the statutory

restriction would have very little force.” San Antonio State Hosp. v. Cowan, 128 S.W.3d

244, 246 (Tex. 2004); see Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005). The

act of providing Solis with a razor to use to shave did not constitute a use of that

property within the meaning of Civil Practice and Remedies Code Section 101.021.

Johnson v. Johnson County, 251 S.W.3d 107, 111 (Tex. App.—Waco 2008, pet. denied).

Solis v. TDCJ                                                                        Page 4
        Additionally, claims involving the failure to use, or the non-use of property, are

not within the waiver of sovereign immunity.           Miller, 51 S.W.3d at 587-88.      The

substance of Solis‖s argument is that TDCJ failed to properly decontaminate the razors

and the area surrounding where the razors were kept. These types of allegations are

not actionable under the Act. See McClain v. Univ. of Tex. Health Ctr., 119 S.W.3d 4, 10

(Tex. App.—Tyler 2002, pet. denied) (holding plaintiff's claims that hospital negligently

failed to use proper sterilization techniques not actionable under the Act); see also Miller,

51 S.W.3d at 587 (holding that claims involving failure to use property are not within

Act's sovereign immunity waiver). We overrule Solis‖s issue one.

Dismissal with Prejudice

        Solis complains that the trial court abused its discretion by not allowing him the

opportunity to amend his pleadings rather than dismissing his case and that it was an

abuse of discretion to dismiss the case with prejudice to refiling. Ordinarily, when a

jurisdictional defect can be remedied in an amended pleading, dismissal with prejudice

is improper. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). However,

when a reasonable opportunity to amend a pleading is afforded, but the amended

pleading still does not allege facts that would constitute a waiver of immunity, the trial

court should dismiss the case with prejudice. Id.

        In this case, the plea to the jurisdiction and motion to dismiss was filed more

than eight months prior to the hearing date. Solis filed a written response to the plea

within six weeks after the plea was filed. Solis amended his petition on the day of the

hearing of the plea to the jurisdiction. The trial court allowed Solis the opportunity to

Solis v. TDCJ                                                                          Page 5
be present and to present evidence or argument against granting the plea to the

jurisdiction at the hearing. The order was not signed until a week after the hearing to

give Solis further opportunity to explain why his case should not be dismissed. Solis

had a reasonable opportunity to and did amend his pleadings; however, he still did not

allege facts that would constitute a waiver of immunity. The trial court did not abuse

its discretion in not allowing Solis the opportunity to amend his pleadings again or in

granting the plea to the jurisdiction with prejudice to refiling. We overrule Solis‖s

issues two and three.

Conclusion

        We find that the trial court did not abuse its discretion in granting the plea to the

jurisdiction and dismissing with prejudice. We affirm the judgment of the trial court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 2, 2009
[CV06]




Solis v. TDCJ                                                                          Page 6
