                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00116-CV


Texas Department of Criminal               §    From the 342nd District Court
Justice

v.                                         §    of Tarrant County (342-246350-10)

Bonnie Ledbetter, Individually and as
Representative of the Estate of John       §    December 21, 2012
Ledbetter, and Freddie Ledbetter,
Callie Ledbetter, Amber Bogusch,
Ashley Ledbetter, and John                 §    Opinion by Justice Gardner
Ledbetter, Jr.

                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the order of the trial

court is affirmed.

      It is further ordered that appellant Texas Department of Criminal Justice

shall pay all costs of this appeal, for which let execution issue.


                                      SECOND DISTRICT COURT OF APPEALS
By_________________________________
  Justice Anne Gardner




   2
                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-12-00116-CV


TEXAS DEPARTMENT OF                                APPELLANT
CRIMINAL JUSTICE

                                    V.

BONNIE LEDBETTER,                                  APPELLEES
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF JOHN LEDBETTER,
AND FREDDIE LEDBETTER,
CALLIE LEDBETTER, AMBER
BOGUSCH, ASHLEY LEDBETTER,
AND JOHN LEDBETTER, JR.


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        FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                 ----------

                      MEMORANDUM OPINION1

                                 ----------




    1
     See Tex. R. App. P. 47.4.


                                     3
                                 I. Introduction

      The Texas Department of Criminal Justice (the Department) appeals the

trial court’s partial denial of its plea to the jurisdiction in the wrongful death

lawsuit filed against it by Appellee Bonnie Ledbetter, Individually and as

Representative of the Estate of John Ledbetter, and Freddie Ledbetter, Callie

Ledbetter, Amber Bogusch, Ashley Ledbetter, and John Ledbetter, Jr.

(collectively, Ledbetter). The Department contends in one issue that the trial

court erred by denying the Department’s plea to the jurisdiction because there is

no evidence that the use of tangible personal property proximately caused John

Ledbetter’s death. We affirm.

                             II. Procedural History

      Ledbetter filed this suit in June 2010. She alleges in her fifth amended

petition that her son John Ledbetter (John) died while in the Department’s

custody and that the Department is liable for his death because the Department’s

employees used or misused a transport van, handcuffs, and restraints. More

specifically, Ledbetter alleges that on June 27, 2008, John was not coherent and

vomited in his cell. Department correctional officers transported John by van to

another prison facility for evaluation and did not call for an ambulance so that

John could be taken to a hospital. Prior to laying John on the backseat of the

van, the officers placed him in handcuffs and belly and ankle cuffs with a chain

running between his hands, belly chain, and ankles.       Ledbetter alleges that,

because of the restraints, John ―could not move him self as needed to take care


                                        4
of himself when vomiting.‖ Ledbetter further alleges that ―[w]hen John arrived at

the Robertson Unit, the nurses immediately saw that John was not breathing and

started CPR[,] but it was too late. The misuse of the restraints, which were

placed on John by employees, agents and servants of [the Department] . . . [was]

a direct and proximate cause of John’s death.‖ ―John died because he aspirated

vomit.‖

      The Department filed its plea to the jurisdiction in September 2011, and the

trial court conducted a hearing in February 2012. The appellate record does not

contain a written response by Ledbetter, but we note that there are several

witness statements attached to Ledbetter’s fifth amended petition. The trial court

granted the Department’s plea to the jurisdiction in part as to Ledbetter’s

allegations concerning the use or misuse of the transport van but also denied the

plea to the jurisdiction in part. As to the partial denial, the trial court’s order

states that ―[t]he case will proceed under the Texas Tort Claims Act solely

predicated upon the alleged use or misuse of restraints.‖       This interlocutory

appeal by the Department followed.2 See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8) (West Supp. 2012).

                            III. Standard of Review

      Whether the trial court has subject-matter jurisdiction is a question of law

that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74

      2
      Ledbetter has not appealed the trial court’s partial grant of the
Department’s plea to the jurisdiction.


                                        5
S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea that

challenges the trial court’s subject-matter jurisdiction. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of action

without regard to whether the claims asserted have merit. Id.

      The plaintiff has the burden of alleging facts that affirmatively establish the

trial court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of

the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual

allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). If, as in this case, a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the

parties that is necessary to resolve the jurisdictional issues. Id. at 227; Bland, 34

S.W.3d at 555.

      The plea to the jurisdiction standard generally mirrors that of a traditional

motion for summary judgment. Miranda, 133 S.W.3d at 228; see Tex. R. Civ. P.

166a(c).   The governmental unit is required to meet the summary judgment

standard of proof for its assertion that the trial court lacks jurisdiction. Miranda,

133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff is

then required to show there is a disputed material fact regarding the jurisdictional

issue. Id. We take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 805 (Tex. App.—Fort


                                          6
Worth 2008, no pet.) (citing Miranda, 133 S.W.3d at 228).             If the evidence

creates a fact question regarding jurisdiction, the trial court must deny the plea to

the jurisdiction and leave its resolution to the factfinder. Miranda, 133 S.W.3d at

227–28. But if the 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.

                               IV. Sovereign Immunity

      The Department asserts that it is entitled to sovereign immunity from suit.

Unless waived by the State, sovereign immunity from suit defeats a trial court’s

subject-matter jurisdiction.    Id. at 225–26.     Relevant to this case, section

101.021(2) of the Tort Claims Act waives immunity only for personal injury and

death ―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(2) (West

2011). Conversely, the Tort Claims Act does not waive sovereign immunity if the

State would not be liable to the claimant under Texas law if it were a private

person. Id.; see City of Fort Worth v. Robinson, 300 S.W.3d 892, 897 (Tex.

App.—Fort Worth 2009, no pet.). Thus, the Tort Claims Act creates a unique

statutory scheme in which immunity from liability and immunity from suit are

coextensive. Miranda, 133 S.W.3d at 224; see also Tex. Civ. Prac. & Rem. Code

Ann. § 101.021(2).




                                          7
      At issue in this case is causation. The Department argues that Ledbetter

has not pleaded and offered evidence that the use of tangible personal property

caused John’s death.      Ledbetter responds that John died as a result of the

officers’ use of restraints because ―the application of the restraints onto an

unconscious and vomiting John led directly to his inability to clear his airways

and ultimately his death.‖

      ―Section 101.021(2) requires that for immunity to be waived, personal

injury or death must be proximately caused by the condition or use of tangible

property.‖   Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968

S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017 (1998). To satisfy this

requirement, there must be ―a nexus between the use of tangible property and

the plaintiff’s injuries.‖ Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d

345, 352 (Tex. App.—Amarillo 2008, pet. denied) (citing Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542–43 (Tex. 2003)). Ledbetter’s pleadings

are clearly sufficient to allege that the use of the restraints caused John’s death.

Among other things, Ledbetter alleges that the ―misuse of the restraints . . . were

a direct and proximate cause of John’s death,‖ that the Department

―[a]ffirmatively us[ed] . . . the restraining devices to restrain John Ledbetter while

he was vomiting without a way to allow him to protect himself and without

protecting him,‖ and that ―John died because he aspirated vomit.‖ We thus focus

on whether the Department’s evidence negated causation as a matter of law and,

if so, whether Ledbetter presented evidence that the alleged misuse of the


                                          8
restraining devices caused John’s death. See id.; see also Bossley, 968 S.W.2d

at 343; Brittain, 268 S.W.3d at 805.

                     V. Plea to the Jurisdiction Evidence

      The record before the trial court at the hearing on the Department’s plea to

the jurisdiction consisted of Ledbetter’s fifth amended petition, the witness

statements attached to Ledbetter’s fifth amended petition, the Department’s plea

to the jurisdiction, and the autopsy report attached to the Department’s plea.

Because we assume the truth of the nonmovant’s evidence when reviewing a

plea to the jurisdiction, Brittain, 268 S.W.3d at 805, we summarize the evidence

in the light most favorable to Ledbetter, the nonmovant.

      Sergeant D. Pierce’s written statement provides that an officer escorted

John into the medical department at approximately 10 p.m. on June 27, 2008,

because John had been ―removing his clothes on several occasions and walking

around the dayroom.‖ The nurse on duty said that nothing could be done for

John until a psychological evaluation could be conducted the next morning, but

John was moved to a segregated cell. In ordering John to pack his belongings to

be moved, Sergeant Pierce noted that John seemed confused. At approximately

4 a.m. the next morning, Sergeant Pierce saw that John ―had thrown up on the

floor with a brown coffee type substance,‖ was lying on his bunk, and was

nonresponsive. Sergeant Pierce wrote that John ―was just lying there shaking

and moving his arms and head around.‖ Sergeant Pierce then called to have

John transported to the Robertson Unit for evaluation, and officers placed John


                                        9
onto a gurney for the transport and temporarily took him to the medical

department.

      Sergeant Pierce also wrote the following in his witness statement:

      While in Medical, I had Officer Skeens remove [John’s] shirt due to
      the liquids on it and he was placed in transport restraints. [John]
      was awake and breathing at this time[;] he was shaking and moving
      his head around. He was not talking or making any noises. . . .
      When [the transport van] arrived, I along with Officer Skeens
      assisted [John] into the side doors of the transport Van. I had
      control of [John]’s upper body and Officer Skeens had control of
      [John]’s legs and he was lifted from the gurney to the backseat of
      the transport Van. At this time I was inside the Van and placed
      [John] in a lying down position on his left side due to [his] not being
      able to sit up on his own and throwing up at this time. [John] was
      still moving his head and shaking at this time. The transport team
      left for the Robertson Unit with all three Officers in the front cab area
      due to space limitations with [John] laying down on the only seat in
      the middle section and the need to transport [him] in an urgent
      manner.

      Officer J. Martinez wrote in his statement that he retrieved restraints after

being notified that John would be transferred to Robertson Unit and that he and

other officers ―applied the transport restraints.‖ According to Officer Martinez’s

statement, John was placed into the transport van ―on his side to prevent choking

due to his prior vomiting.‖ The transport van departed at 4:20 a.m., arrived at the

Robertson Unit at 4:22 a.m., and pulled up to the Robertson Unit Medical

Department at approximately 4:25 a.m. Officer Martinez wrote that John was

moaning and shaking upon arrival but that he was no longer moaning when the

officers opened the van doors.      During transport, John ―had rolled himself in

between the seat where he was lying on his side.‖ Officer Martinez checked



                                         10
John’s pulse and ―observed it to be very faint.‖ Officer Martinez also helped

move John to a gurney and watched as nurses began CPR.

       Nurse R. Mayfield’s written statement provides that John was ―face down

between [the] seat and cage‖ when she first saw him. Nurse Mayfield called the

ambulance, and officers removed John from the van and placed him on a gurney.

Nurse Mayfield wrote that John’s ―face and head was purple, pupils fixed and

dilated.‖

       Nurse G. Perales wrote in her statement that she heard officers say that

John was not breathing and that she ―jumped [onto the] gurney and started chest

compression.‖ Nurse Perales also wrote:

       Told my supervisor to get Ambubag from under gurney to give air.
       Airway clear. [Nurse] Mayfield, LVN pushing gurney down hallway
       toward ER Room. More Security arrived. Assisting with CPR.
       Airway suctioned out. O2 applied with Ambubag at 10 L/M. Patient
       not responding. Skin cold and purple. No pulse or respiration
       noted. Ambulance had been called. CPR continued. Paramedics
       arrived. MD called at HMC and given report told to stop CPR. CPR
       in progress X 30 minutes approx. Heart monitors showing no
       cardiac activity. Paramedics applied their heart monitors and
       nothing was seen. Hear[t] not responding. CPR was ordered by
       HMC Doctor to be discontinued. End of CPR rescue efforts.

       Nurse C. Williamson’s statement reflects that John was ―lying face down

between the seat and the cage‖ in the transport van when she first saw him. He

was transferred from the van to the gurney by the officers, and someone called

EMS. Nurse Williamson also wrote: ―[John’s] color was purple on head and

face, pupils were fixed, above nipple line color was lightly red/purple and

mottled.‖ John had no pulse three minutes later, but nurses continued CPR until


                                      11
the paramedics arrived. The paramedics assessed John’s condition after they

arrived and contacted Dr. Maloney who told them to stop CPR.3

      The last written statement attached to Ledbetter’s petition is by inmate

Jesus Ezpinoza. Ezpinoza wrote that the officers were not trying to help John

despite his requests for help and that they only offered him a cup of water.

Ezpinoza further stated that the ―officers finally got him some medical attention

[when] he was drooling out green stuff from his mouth.‖ Ezpinoza wrote that

John was trembling when he initially walked into his cell but that his ―bones were

tr[e]mbling‖ when the officers carried him out to the gurney.

      The Department’s only evidence is the autopsy report. The listed findings

include that John was ―pronounced dead in infirmary following episode of

disorientation, vomiting, and convulsions (by history)‖ and that John had severe

atherosclerotic coronary artery disease, severe pulmonary edema and

congestion, cardiomegaly, and arteriolonephrosclerosis. The medical examiner

listed the causes of death as ―congestive heart failure due to hypertensive and

atherosclerotic cardiovascular disease‖ and chronic hepatitis. The autopsy report

also stated that John’s airways were ―patent, containing no foreign objects or

material.‖




      3
      John was pronounced dead at 5:03 a.m.             His hand restraints were
removed at 7:02 a.m.


                                        12
                                   VI. Analysis

      The Department contends that the trial court lacks subject matter

jurisdiction because Ledbetter failed to plead and prove that the use of restraints

caused John’s death and thereby failed to establish a waiver of sovereign

immunity under the Tort Claims Act. Specifically, the Department argues that the

autopsy report establishes that John died from heart failure and that Ledbetter

has presented no evidence tending to show that John died of asphyxiation as a

result of being restrained while vomiting.

      We conclude that the evidence in the plea to the jurisdiction record does

not conclusively disprove causation.         Although the autopsy report does not

include aspiration as an immediate or secondary cause of John’s death, we are

required to review the evidence in the light most favorable to Ledbetter, indulging

every reasonable inference and resolving any doubts in her favor. See Brittain,

268 S.W.3d at 805. Considered in that light, evidence other than the autopsy

report shows that John may have asphyxiated and that the restraints could have

been a proximate cause of John’s death. John was vomiting when placed into

the transport van and was restrained while in the van. Sergeant Pierce wrote in

his statement that John was placed ―in a lying down position‖ in the transport van

because he could not sit up on his own and was ―throwing up at this time.‖

Viewing the evidence in the light most favorable to Ledbetter, a reasonable

inference may be drawn that John was vomiting after he was placed in the van.

Although Officer Martinez’s statement provides that John was placed on his side


                                         13
to prevent choking, there is no evidence that John did not continue vomiting en

route to the Robertson Unit as no one rode in the back of the van with John to

observe his condition during the transport. In addition, all three nurses noted

that, upon arrival at the Robertson Unit, John’s coloring was purple.      Nurse

Perales wrote in her statement that she was called by Nurse Mayfield to help

while the officers were removing John from the van. She heard them say, ―He is

not breathing.‖ She then ―jumped up gurney and started chest compression‖ and

told her supervisor to give John air. She then wrote that John’s airway was clear,

all of this occurring as Nurse Perales was continuing CPR and as Nurse Mayfield

was pushing the gurney toward the emergency room. John’s airway was then

suctioned.

      Applying the appropriate standard of review, Nurse Perales’s statements

that John’s airway was clear and was suctioned out do not conclusively negate

the possibility that John’s airway was obstructed when Nurse Perales began

CPR upon John’s arrival at the Robertson Unit. See Miranda, 133 S.W.3d at

228; Brittain, 268 S.W.3d at 805. The Department relies on the statement in the

autopsy report that John’s airway was open, clear, and ―contain[ed] no foreign

objects or material,‖ but the suctioning of John’s airway would explain the

medical examiner’s failure to find obstructions in John’s airway when he

performed the autopsy later that day.       Thus, in the absence of affirmative

evidence offered by the Department that John’s physical symptoms upon arrival

at the Robertson Unit were not consistent with asphyxiation, the evidence does


                                       14
not conclusively disprove Ledbetter’s theory that John asphyxiated on vomit as a

result of being restrained in the transport van.

         Applying the appropriate standard of review and thus reviewing the plea to

the jurisdiction evidence in the light most favorable to Ledbetter, we hold that the

evidence does not conclusively show that the Department’s use of restraints was

not a proximate cause of John’s death. See generally Brittain, 268 S.W.3d at

808 (―The causation requirement in section 101.021(2) is one of proximate

cause-not a heightened standard such as sole cause.‖). Although the evidence

arguably preponderates against a conclusion that the restraints proximately

caused John’s death in that he was apparently suffering from a cardiac event

prior to being restrained and was determined to have died as a result of

congestive heart failure, the evidence does not conclusively negate the use of

restraints as a proximate cause of John’s death and is likewise conflicting as to

whether the Department’s use of restraints was, although not the sole cause, a

proximate cause of John’s death. The trial court therefore did not err by denying

the Department’s plea to the jurisdiction. We overrule the Department’s sole

issue.




                                         15
                                  VII. Conclusion

         Having overruled the Department’s sole issue, we affirm the trial court’s

order.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: December 21, 2012




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