                                    NO. 07-06-0094-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   NOVEMBER 27, 2007

                           ______________________________

                          REBECCA HERNANDEZ, APPELLANT

                                             V.

             THE CITY OF LUBBOCK AND BLAKE LITTLEJOHN, APPELLEES
                       _________________________________

              FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2005-529,164; HONORABLE SAM MEDINA, JUDGE
                         _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.1


                                         OPINION


       In the suit appellant Rebecca Hernandez brought against the City of Lubbock and

Blake Littlejohn, the trial court granted summary judgment in favor of the City and

dismissed her claims against Littlejohn. On her appeal, we affirm the judgment for the City,

and reverse as to her claims against Littlejohn.




       1
           Justice Hancock not participating. Tex. R. App. P. 41.
                           Factual and Procedural Background


       Hernandez’s suit arose from events that occurred in June 2004 when Littlejohn, then

a uniformed Lubbock policeman, made a nighttime traffic stop of Hernandez’s vehicle. She

alleged that Littlejohn, in the back seat of his patrol car, required her to masturbate him

after she refused his demand that she perform oral sex. After the events, Littlejohn

resigned from the police force, and plead guilty to misdemeanor harassment. Hernandez’s

petition alleged Littlejohn committed the intentional torts of sexual assault and battery

against her, and alleged the City negligently supervised Littlejohn and was negligent in

other respects. She alleged Littlejohn’s actions caused her extreme mental anguish and

bodily injury. Her petition makes clear that she sued Littlejohn in his individual capacity

and sued the City under the Texas Tort Claims Act.2


       Littlejohn filed a motion to dismiss pursuant to section 101.106(e) of the Tort Claims

Act.   Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005). Hernandez

responded and, after a hearing, the court granted the motion and dismissed her claims

against Littlejohn with prejudice.3


       The City of Lubbock later filed a motion for summary judgment. The trial court

granted the City’s motion and signed the final judgment made the subject of this appeal.



       2
           Tex. Civ. Prac. & Rem. Code Ann. § 101.001 et seq. (Vernon 2005).
       3
        Hernandez attempted to appeal the dismissal of Littlejohn. We dismissed the
appeal for want of jurisdiction because her claims against the City of Lubbock were still
pending in the trial court. Hernandez v. City of Lubbock, 2005 WL 3434053 (Tex.
App.–Amarillo 2005, no pet.) (memo. op.).

                                             2
       Hernandez brings three appellate issues challenging the trial court’s dismissal of her

claims against Littlejohn, and by her fourth issue contends the court erred by granting

summary judgment for the City.


                                         Analysis


Motion to Dismiss Pursuant to Section 101.106(e)


       By her first issue, Hernandez contends in part that the trial court erred by granting

the motion to dismiss because it was filed by Littlejohn rather than the City. We agree and

find the contention dispositive of Hernandez’s appeal of the dismissal.4


       The issue raises a question of law, so we will review the dismissal de novo. See In

re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (determining applicable standard of review based

on substance of issue to be reviewed); Johnson v. City of Fort Worth, 774 S.W.2d 653,

655-56 (Tex. 1989) (matters of statutory construction are questions for the court); Buck v.

Blum, 130 S.W.3d 285, 290-91 (Tex.App.–Houston [14th Dist.] 2004, no pet.) (to the extent

resolution of an issue requires interpretation of statute itself, de novo standard applies).


       As pertinent here, section 101.106 of the Tort Claims Act reads as follows:


       (a)    The filing of a suit under this chapter against a governmental unit
              constitutes an irrevocable election by the plaintiff and immediately and


       4
         Hernandez also contends dismissal was improper because her claims against
Littlejohn and those against the City did not involve the same subject matter. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(a), (b) (Vernon 2005). We do not address this
contention.

                                             3
             forever bars any suit or recovery by the plaintiff against any individual
             employee of the governmental unit regarding the same subject
             matter.


      (b)    The filing of a suit against any employee of a governmental unit
             constitutes an irrevocable election by the plaintiff and immediately and
             forever bars any suit or recovery by the plaintiff against the
             governmental unit regarding the same subject matter unless the
             governmental unit consents.


                                         *   *   *


      (e)    If a suit is filed under this chapter against both a governmental unit
             and any of its employees, the employees shall immediately be
             dismissed on the filing of a motion by the governmental unit.




      Littlejohn’s motion to dismiss asserted that section 101.106 required Hernandez to

make an irrevocable election between a suit against the City5 under the Tort Claims Act

and a suit against Littlejohn, a City employee at the time the claims arose. Littlejohn’s

motion cited section 101.106(e) for the proposition that if suit is filed against both a

governmental unit and an employee, the employee is entitled to dismissal “on the filing of

a motion.”


      Hernandez objected in the trial court, and asserts on appeal, that section 101.106(e)

provides for dismissal only “on the filing of a motion by the governmental unit” when a




      5
        See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 2005) (defining
a governmental unit to include a city).

                                             4
plaintiff sues both the employee and the governmental unit regarding the same subject

matter.


       Littlejohn contends that, considered together, sections 101.106(a) and 101.106(e)

warranted dismissal of the claims against him. Acknowledging that section 101.106(e)

mandates dismissal in the circumstances described in that section when the governmental

unit moves for its dismissal, he nonetheless asserts that nothing in section 101.106(e)

prohibits a trial court from dismissing an action barred by section 101.106(a) simply

because the employee, rather than the governmental unit, moves to dismiss.


       In support of his position, Littlejohn quotes language from several cases applying

section 101.106(e). His reading of the cases leads him to conclude that courts have

construed section 101.106(e) to provide for dismissal on the motion of any defendant. For

instance, Littlejohn points to the statement in Waxahachie Independent School District v.

Johnson, 181 S.W.3d 781 (Tex.App.–Waco 2005, pet. filed), that “Upon the motion of

either the government or the employees, a plaintiff is forced to proceed against the

government alone . . . .” in the three circumstances there described. Id. at 785. We do not

read the Waxahachie ISD opinion to suggest that the identity of the movant is unimportant

under section 101.106(e).6 In the quoted sentence from that opinion, the court cites and

quotes the opinion of the Beaumont court in Villasan v. O’Rourke, 166 S.W.3d 752

(Tex.App.–Beaumont 2005, pet. filed). The sentence from Villasan quoted in Waxahachie

ISD comes from the Beaumont court’s discussion of the “procedural right” created by the

       6
        We note also that Waxahachie ISD involves dismissal of the governmental unit,
not the employees. Waxahachie, 181 S.W.3d at 785.

                                            5
provisions of section 101.106. Villasan,166 S.W.3d at 758. That discussion carefully

distinguishes the aspects of the procedural right subject to the governmental unit’s election

from those subject to that of the employee. Referring to section 101.106(f), the court notes

that the statute “allows the governmental employee whose conduct is alleged to have been

within the scope of employment to force the plaintiff to amend the suit and name the

governmental entity as the sole defendant.” Id. It follows that statement with one

addressing section 101.106(e), stating, “The statute allows the government, when both the

government and the employee are sued, to force the plaintiff to drop the employee from

the suit. Id., citing § 101.106(e). Summarizing the statutory provisions creating the

“procedural right,” the court then states, “At the election of the government or the

employee, the respective defendant may force the plaintiff to proceed” in Texas Tort

Claims Act cases, in the manner described in section 101.106. Id. (emphasis ours).


       We see nothing in the Villasan opinion construing section 101.106(e) to provide for

dismissal of an employee on the motion of any but the governmental unit defendant. To

the contrary, Villasan makes clear that it was the filing of a motion by the governmental unit

that entitled the employee to dismissal. Id. Likewise, the court in Waxahachie ISD,

following its quote from the Villasan opinion, states, “The decisions have held that once the

government files a motion to dismiss the employees under section 101.106(e), the trial

court must grant the motion and dismiss the employees from the suit. Waxahachie, 181

S.W.3d at 785, citing, inter alia, Villasan, 166 S.W.3d at 761-62. Nor do we agree that

Waxahachie ISD should be read as supporting Littlejohn’s contention that his motion under

section 101.106(e) warranted dismissal of Hernandez’s suit against him.


                                              6
       Littlejohn also cites language from several federal court cases applying section

101.106, including Martinez v. Center for Health Care Services, No. SA-04-CA-0412-RF,

2005 WL 1168433 (W.D. Tex. May 17, 2005); Hernandez v. Duncanville School Dist., No.

Civ. A. 3:04-CV-2028-BH, 2005 WL 723458 (N.D. Tex. March 29, 2005); Barnes v. Barnes,

No. Civ. A. 103CV231-C, 2004 WL 691202 (N.D. Tex. March 30, 2004); and Livingston v.

DeSoto Ind. School Dist., No. Civ. A. 3:04-CV-1818, 2004 WL 2964977 (N.D. Tex. Dec.15,

2004). None of those cases address the significance of the identity of the movant under

section 101.106(e).     Moreover, each involves rulings on motions filed by multiple

defendants that include governmental entities.7 We do not find in them even persuasive

support for Littlejohn’s position.


       We similarly find Littlejohn’s reliance on section 101.106(a) unpersuasive. As noted,

section 101.106(a) provides that the filing of a suit under the Tort Claims Act against a

governmental unit constitutes the plaintiff’s irrevocable election, “immediately and forever”

barring any suit or recovery by the plaintiff against any individual employee of the

governmental unit regarding the same subject matter. Littlejohn asserts that Hernandez’s

act of filing suit against the City under the Tort Claims Act barred her suit against him,

authorizing the trial court to dismiss it on his motion.




       7
         For example, Barnes indicates that the motion being addressed asked that the City
of Abilene be substituted as a defendant for the Abilene police department, and indicates
also that the mayor of Abilene, sued in his official capacity, was among the movants.
Barnes, 2004 WL 691202 at *7. The motion addressed in Barnes, seeking relief both on
behalf of governmental and employee defendants, cannot fairly be compared with
Littlejohn’s motion relying on section 101.106(e), and the opinion addressing the motion
sheds no light on the question before us.

                                              7
       When required to construe a statute, we must read the legislative enactment as a

whole, giving effect to all its provisions. Liberty Mut. Ins. Co v. Garrison Contractors, Inc.,

966 S.W.2d 482, 484 (Tex. 1998) (in construing a statute, we look to the plain and

common meaning of the words, giving full effect to each term in context); State v.

Kingsbury, 129 S.W.3d 202, 204-05 (Tex.App.–Corpus Christi 2004, no pet.) (statute

should be considered in entirety when determining the meaning of its component parts).

Section 101.106(a) does indeed provide that a plaintiff makes an irrevocable election of

remedies by filing suit against a governmental unit under the Tort Claims Act. But section

101.106(e) provides the equally clear instruction that when suit is filed under the Tort

Claims Act against both the governmental unit and its employee, the employee shall

immediately be dismissed on the filing of a motion by the governmental unit.


       Under Littlejohn’s reading of the statute, section 101.106(e)’s express provision for

dismissal on the motion of the governmental unit is unnecessary. Under his view, the

plaintiff’s irrevocable election under section 101.106(a) of the remedy of suit against the

governmental unit under the Tort Claims Act is to be enforced by the trial court’s dismissal

of the employee, without the necessity for action by the governmental unit. As this Court

recently said when called on to construe another part of section 101.106, “we opt to give

substance to the legislature’s words.” Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 875

(Tex.App.–Amarillo 2007, pet. filed) (construing section 101.106(f)).


       Littlejohn’s pleadings do not assert any basis for his immunity from suit or liability

outside the provisions of section 101.106. As the record stands, Littlejohn’s assertion of



                                              8
immunity from Hernandez’s suit is thus dependent on the terms of section 101.106.8

Because Littlejohn seeks protection in the statute against Hernandez’s common-law claims

of intentional tort, brought against him in his individual capacity, the law properly requires

his compliance with the terms of the statute. See Employees Retirement Sys. of Tex. v.

Blount, 709 S.W.2d 646, 647 (Tex. 1986); Kennedy v. Andover Place Apts ., 403 S.W.3d

495 (Tex.App.–Houston [14th Dist.] 2006, no pet.); Perkins v. Group Life & Health Ins. Co.,

49 S.W.3d 503, 506 (Tex.App.–Austin 2001, pet. denied) (all applying precept that

statutory provisions of a cause of action derived from statute, not common law, are

mandatory and exclusive and must be complied with in all respects). The terms of the

statute provide for his dismissal from the suit filed both against him and the City on the

filing of a motion by the governmental unit. In the absence of a motion filed by the City,

Littlejohn was not entitled to dismissal pursuant to section 101.106.9 Because section

101.106 was the only basis on which Littlejohn sought dismissal, the trial court erred by

dismissing Hernandez’s claims against him. Accordingly, we sustain Hernandez’s first

issue.


         Hernandez’s second issue on appeal asserts dismissal of her claims against

Littlejohn deprived her of rights guaranteed by the Texas Constitution, and her third issue



         8
         By contrast, the City of Lubbock benefits from governmental immunity when it
engages in governmental functions, except when that immunity has been waived. City of
Houston v. Vargas, 193 S.W.3d 143, 146 (Tex.App.–Houston [1st Dist.] 2006, pet. denied)
(citing City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997)).
         9
         See Tex. Dep’t of Ag. v. Calderon, 221 S.W.3d 918, 924 n.6 (Tex. App.–Corpus
Christi 2007, no pet h.) (noting § 101.106(e) “not implicated” when motion to dismiss filed
by employee rather than governmental unit).

                                              9
complains of the trial court’s failure to make findings of fact and conclusions of law with

regard to the dismissal.      Given our sustaining of her first issue, we do not reach

Hernandez’s second and third issues. Tex. R. App. P. 47.1.


City of Lubbock’s Motion for Summary Judgment


     Hernandez’s last issue on appeal asserts that the trial court erred in granting the City

of Lubbock’s motion for summary judgment. Hernandez’s petition alleged the City was

responsible for Littlejohn’s conduct because he was in the course and scope of his

employment when he stopped her, and alleged the City negligently supervised Littlejohn

in several respects. As noted, all her claims against the City were asserted under the

Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.001, et seq. (Vernon

2005).


         In its answer, the City plead its immunity as an affirmative defense.10 The City filed

a traditional motion for summary judgment and a plea to the jurisdiction,11 both asserting



         10
           Immunity from liability is an affirmative defense, while immunity from suit deprives
a court of subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). Under the Tort Claims Act, the two immunities are co-extensive.
Id. The statute states: “Sovereign immunity to suit is waived and abolished to the extent
of liability created by this chapter,” and “A person having a claim under this chapter may
sue a governmental unit for damages allowed by this chapter.” Tex. Civ. Prac. & Rem.
Code Ann. § 101.025(a), (b) (Vernon 2005).
         11
           Governmental entities, such as the City, are immune from suit unless the
legislature has expressly consented to the suit. Harris County v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004). The party suing the governmental entity must establish consent to suit,
which may be alleged either by reference to a statute or to express legislative permission.
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Absent consent to suit,
a trial court lacks subject matter jurisdiction. Id.

                                               10
it had immunity from Hernandez’s suit because none of her claims came within the limited

waiver of immunity provided by the Tort Claims Act. The trial court denied the plea to its

jurisdiction but granted the summary judgment motion.


       By its summary judgment motion, the City contended Hernandez’s suit arose out of

Littlejohn’s commission of intentional torts and were thus excluded from the Tort Claims

Act pursuant to § 101.057(2).12      The City also contended that, even assuming the

intentional tort allegations were not a bar to the suit, Hernandez’s claims did not come

within those described in § 101.021 of the Tort Claims Act13 because they arose neither

from Littlejohn’s use of his patrol car nor from the use of any other tangible personal

property.


     Our review of a summary judgment is de novo to determine whether the movant

established the absence of a genuine issue as to any material fact and its entitlement to

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.–Dallas 2000,

pet. denied). We take as true all evidence favorable to the non-movant, and indulge every

reasonable inference and resolve any doubt in the non-movant’s favor. Nixon v. Mr.

Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Where the movant is

a defendant, it must negate at least one essential element of the plaintiff's cause of action.

Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a



       12
            Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (2) (Vernon 2005).
       13
            Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005).

                                             11
defendant who conclusively establishes each element of an affirmative defense is entitled

to summary judgment. Id.


       Once the movant has established a right to summary judgment, the non-movant has

the burden to respond to the motion for summary judgment and present any issues which

would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589

S.W.2d 671, 678 (Tex. 1979). Thus, when an affirmative defense like governmental

immunity is established, the burden of raising a disputed fact issue shifts to the non-

movant. EPGT Texas Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d 330,

335 (Tex.App.–Houston [1st Dist.] 2004 pet. dism’d); Medrano v. City of Pearsall, 989

S.W.2d 141 (Tex. App.–San Antonio 1999, no pet.) (citing Ager v. Wichita General Hosp.,

977 S.W.2d 658, 660 (Tex. App.–Fort Worth 1998, no pet.)).


       It is undisputed the functions being performed by the City pertinent to Hernandez’s

suit were governmental in nature, entitling it to governmental immunity absent a waiver of

immunity.    Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (Vernon 2003); see City of

Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007) (discussing governmental immunity

of cities). We must therefore examine the summary judgment evidence to determine

whether a fact issue was raised regarding the application of immunity. Ager, 977 S.W.2d

at 660 (citing Brand v. Savage, 920 S.W.2d 672, 673 (Tex.App.–Houston [1st Dist] 1995,

no writ)).




                                           12
       When, as here, the trial court’s order does not specify the ground on which summary

judgment was granted, the judgment is to be affirmed if the motion advanced any

meritorious theory. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).


             Use of tangible personal property and use of motor-driven vehicle


       Hernandez’s response to the City’s motion for summary judgment contended that her

claims fit within the limited waiver of governmental immunity contained in the Tort Claims

Act because her injury was caused by Littlejohn’s use or misuse of “police equipment

including the radio, audio recorder and video recorder.” Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2) (Vernon 2003). She pointed to summary judgment evidence suggesting that

the City’s policies allow police officers discretion whether to record traffic stops and similar

encounters with the public, and Littlejohn’s deposition testimony that he had never known

of an officer being disciplined for improper use of audio or video equipment. She noted

evidence that showed Littlejohn admitted he had turned off his mobile microphone so as not

to record his contact with her. Hernandez contended that Littlejohn’s offense against her

“could easily have been prevented if the City of Lubbock had policies and procedures in

place to prevent the manipulation of the audio and video recording devices and if proper

supervision of patrol officers had been implemented.” Hernandez’s argument in her

response also made reference to the City’s failure to provide “equipment which would

prevent officers” from turning off the audio portion of the video recorder to prevent the

detection of improper actions.14


        14
          Hernandez compares the City’s failure to provide such equipment with the
University of Houston’s failure to repair a broken dormitory doorlock in Delaney v.

                                              13
       In § 101.021, the word “use” means “to put or bring into action or service; to employ

for or apply to a given purpose.” San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246

(Tex. 2004) (citations omitted). While in this context “use” may include “misuse,” Smith v.

Tarrant County, 946 S.W.2d 496, 501 (Tex.App.–Fort Worth 1997, writ denied) (op. on

rehearing), it does not include “non-use.” Using the property must actually have caused

the injury. Tex. Dep’t Crim. Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex. 2001); see Tex.

Nat’l Resource Cons. Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001) (to invoke Tort

Claims Act’s waiver of immunity, injury must have been caused by governmental unit’s

actual use of property, not the failure to use it) (citing Kerrville State Hosp. v. Clark, 923

S.W.2d 582, 584-85 (Tex. 1996)). Waiver of the City’s immunity cannot be predicated

under § 101.021(2) on Littlejohn’s deactivation of his radio microphone.


       Moreover, imposition of liability under § 101.021(2) based on use of personal

property requires more than the property’s mere involvement in the circumstances causing

injury. City of Sugarland v. Ballard, 174 S.W.3d 259, 267 (Tex.App.–Houston [1st Dist.]

2005, no pet.). For waiver of immunity under that provision, the injury must have been

proximately caused by the condition or use of property. Dallas County Mental Health &

Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998); Texas Dep’t Mental

Health & Mental Retardation v. Lee, 38 S.W.3d 862, 867 (Tex.App.–Fort Worth 2001 pet.

denied) (cases require “close causal relationship” between condition or use of property and



University of Houston, 835 S.W.2d 56 (Tex. 1992). The holding of Delaney addresses only
the intentional tort exclusion of § 101.057. Id. at 61. The case does not assist in our
evaluation of Hernandez’s contention that Littlejohn’s misuse of police equipment brings
her claims within § 101.021(2).

                                             14
resulting injury). Property that “does no more than furnish the condition that makes the

injury possible” does not cause injury. Bossley, 968 S.W.2d at 343. Even if Littlejohn’s

action of turning off his radio microphone is viewed as a misuse rather than a non-use of

the equipment, that action cannot be said to have caused the mental anguish and bodily

injuries alleged in Hernandez’s petition. They were caused by Littlejohn’s intentional acts.

If his unused police radio and related equipment can be said to have had any involvement

with Hernandez’s injuries, they did no more than play their part in furnishing the conditions

that made her injuries possible. Indulging in Hernandez’s favor every reasonable inference

that can be drawn from the summary judgment evidence, we nonetheless find, as a matter

of law, that her injuries were not caused by use of Littlejohn’s police radio, audio recorder

or video recorder. Id. See also Bonham v. Texas Dep’t of Criminal Justice, 101 S.W.3d

153, 159 (Tex.App.–Austin 2003, no pet.) (rejecting contention that lack of surveillance

equipment was use or condition of property that caused injuries from sexual assault by

prison guard); Hendrix v. Bexar County Hosp. Dist. 31 S.W.3d 661, 663 (Tex. App.–San

Antonio 2000, pet. denied) (government employee sexually assaulted patient under guise

of performing breast exam; held that employee’s use of examination room, examination

table, patient gown and public address system did not cause the assault, but merely

furnished some of the conditions that made it possible).


      In her response to the City’s summary judgment motion, Hernandez also asserted

the City had not established as a matter of law that her injuries did not arise from the

operation or use of Littlejohn’s patrol car. She argued his assault of her could not have

taken place without the use of the patrol car’s back seat. Summary judgment evidence


                                             15
showed that three other people were with Hernandez when Littlejohn stopped her vehicle.

His patrol car was behind her vehicle and Hernandez’s affidavit states that Littlejohn “took

me back to his car and told me to get into the backseat.” The patrol car thus provided a

somewhat secluded location to which Littlejohn could remove Hernandez without causing

suspicion over his motives, and in which he could expose himself and make his demands

on her, outside the view of the passengers in her vehicle. Accepting Hernandez’s

argument that these events would not have occurred but for the availability of the patrol

car’s back seat, still we conclude, as a matter of law, her injuries did not arise from the

operation or use of the patrol car, as the courts have applied that phrase.


       Waiver of immunity for claims based on the operation or use of a motor-driven

vehicle, like that for injuries assertedly caused by use of tangible property, requires the

plaintiff to show a nexus between the vehicle’s operation or use and the plaintiff’s injury.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (Vernon 2005); Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003). “[A]s with the condition or use of

property, the operation or use of a motor vehicle ‘does not cause injury if it does no more

than furnish the condition that makes the injury possible.’” Whitley, 104 S.W.3d at 543,

quoting Bossley, 968 S.W.2d at 343. In a case in which a Houston police officer stopped

the plaintiff for an apparent traffic violation, ordered her to follow him as he drove his police

car, led her to a parking garage, and there sexually assaulted her in his police car, the

court found missing the “required causal nexus” between the officer’s use of his patrol car

and his intentional assault. Holder v. Mellon Mortg. Co., 954 S.W.2d 786, 789, 807 (Tex.

App.–Houston [14th Dist.] 1997, rev’d on other grounds, 5 S.W.3d 654 (Tex. 1999)). It


                                               16
concluded the plaintiff had not alleged an injury arising from use of the vehicle, and

affirmed dismissal of her claims against the City of Houston. Id. at 808.15 We reach the

same conclusion on these very similar facts. Again viewing the summary judgment

evidence in Hernandez’s favor, we find that Littlejohn’s use of his patrol car simply served

to furnish one of the conditions that made his intentional assault, and Hernandez’s injuries,

possible. Evidence shows Hernandez’s injuries occurred in the patrol car, but it does not

show Littlejohn’s use of the vehicle caused her injuries.16


       Hernandez relies on Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.

1983) and Bryant v. Metropolitan Transit Authority, 722 S.W.2d 738 (Tex.App.–Houston

[14th Dist.] 1986, no writ). Hernandez’s reliance on Salcedo essentially involves the same

misapplication of the case that the supreme court later described in Bossley. Bossley, 968

S.W.2d at 342-43. As we have noted, the court there clarified that the requirement of

causation for a waiver of immunity based on use of property requires more than the

property’s mere involvement. Id. at 343. Bryant involved an assault on a bus passenger

by other passengers. Bryant, 722 S.W.2d at 739. Relying on Salcedo, and its “broad

reading” of the provisions that now constitute § 101.021, the majority opinion held that the

plaintiff had alleged a claim within the waiver provisions. Id. at 740. We do not agree that


       15
         The plaintiff in Holder contended on appeal only that use of the patrol car was use
of tangible personal property under § 101.021(2), Holder, 954 S.W.2d at 805 n.10, but, as
the same court later noted in Brown v. Houston Ind. Sch. Dist., 123 S.W.3d 618, 620
(Tex.App.–Houston [14th Dist.] 2003 pet. denied), also on similar facts, the result is the
same under either subsection.
       16
        See also Limon v. City of Balcones Heights, 485 F.Supp.2d 751, 756-57 (W.D.
Tex. 2007) (plaintiff raped by police officer in patrol car; court granted city’s motion for
summary judgment in plaintiff’s Texas Tort Claims Act claim).

                                             17
Salcedo and Bryant can support reversal of the summary judgment granted the City in this

case, and choose instead to follow Holder’s analysis of the causal nexus between the

officer’s use of the patrol car and his intentional assault. Holder, 954 S.W.2d at 807.


                                    Negligent supervision


       Hernandez’s pleadings alleged the City was negligent in not properly supervising the

actions of Littlejohn. Specifically, she alleged the City was negligent in (1) maintaining a

policy that allows a police officer to use his discretion in recording or not recording the

audio portion of a police traffic stop; (2) allowing a police officer to use his discretion in

videotaping or not videotaping a police traffic stop; (3) allowing a police officer to make a

traffic stop of undetermined length before reporting to his supervisor the need and purpose

for the stop; (4) failing to supervise patrol officers who make routine traffic stops in an area

known to be frequented by young women; and (5) failing to fire Littlejohn when it became

apparent to the City that Littlejohn was a sex offender. A claim for negligent supervision or

training is a distinct cause of action. Tex. Dep’t Pub. Safety v. Petta, 44 S.W.3d 575, 581

(Tex. 2001), (citing Young v. City of Dimmitt, 787 S.W.2d 50 (Tex. 1990)). The Tort Claims

Act, however, does not waive governmental immunity for all such claims, only those that

are within the terms of the Act’s waiver under § 101.021. Petta, 44 S.W.3d at 581; Norrell

v. Gardendale Volunteer Fire Dept., 115 S.W.3d 114 (Tex.App.–San Antonio 2003, no

pet.). We have concluded that, under applicable law, Hernandez’s claims neither arose

from the use of Littlejohn’s vehicle nor were caused by his use of tangible personal

property. The addition of claims asserting that he was negligently supervised during his



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encounter with Hernandez does not bring her suit within the waiver of immunity set forth

in § 101.021.


       Lastly, we agree with the City that Hernandez’s assertions of negligence with regard

to the policies the City maintained for officers’ decisions to record traffic stops and to report

to a supervisor during stops do not involve a use or misuse of property, and so do not

come within § 101.021's waiver of immunity. See Ballard, 174 S.W.3d at 265 (reaching

similar conclusion on claims based on police force’s “customs and policies”).17


       Because we conclude the summary judgment record shows as a matter of law that

Hernandez’s claims do not fall within the terms of the waiver of immunity prescribed by §

101.021, we overrule her fourth issue.


                                          Conclusion


       The judgment of the trial court in favor of the City of Lubbock is affirmed. The trial

court’s dismissal of Hernandez’s claims against Littlejohn is reversed and those claims are

remanded for further proceedings.


                                                    James T. Campbell
                                                        Justice




       17
         The City argues also that such claims are excluded from the Tort Claims Act
under § 101.055(3), which provides the Act does not apply to claims arising from “the
method of providing police or fire protection,” and under § 101.056, which provides it does
not apply to a governmental unit’s failure to perform a discretionary act. We do not
address either argument, nor need we address the City’s alternate contention that all
Hernandez’s claims arose out of an intentional tort to which the waiver of immunity does
not extend. Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (Vernon 2005).


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