                           NUMBER 13-18-00574-CV

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


SEAN KIRSTEIN,                                                              Appellant,

                                            v.

CITY OF SOUTH PADRE ISLAND, TEXAS,                                          Appellee.


               On appeal from the County Court at Law No. 3
                       of Cameron County, Texas.


                           MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Longoria and Perkes
          Memorandum Opinion by Chief Justice Contreras

       Appellant Sean Kirstein appeals from a plea to the jurisdiction granted in favor of

appellee the City of South Padre Island, Texas (the City). By one issue, Kirstein argues

the trial court erred when it granted the City’s plea. We affirm.
                                      I.   BACKGROUND

       On or about June 29, 2018, Kirstein was arrested for public intoxication and taken

to the City’s jail. While detained in a cell, Kirstein was attacked by fellow inmate Francisco

Ibarra. In his petition, Kirstein argued that the City’s “arresting officers and jailers knew

or should have known that due to the many prior times they had arrested Mr. Kirstein for

alcohol related offenses that he was unpredictable and violent ‘drunk’ who needed to

be ‘observed’ and ‘segregated’ from other prisoners to avoid harm to Mr. Kirstein and to

harm others in his close proximity” (emphasis in original). According to Kirstein, the City

was negligent because: (1) it lacked adequate facilities for segregating and monitoring

inmates such as Ibarra and Kirstein, (2) it failed to immediately transfer either Ibarra or

Kirstein to the Cameron County Jail where either could have been “adequately

segregated,” (3) the City’s jailers “failed to follow the written policies and procedures in

place at the South Padre Island jail for segregating drunk and aggressive inmates such

as” Ibarra and Kirstein, (4) the jailers were “not given any ‘jail detention training’ at the

time they were assigned to duty as ‘jailers,’” and (5) “jailers were allowed to watch

television at the ‘booking desk’ thereby taking their attention away from assaults taking

place in their jail.” Kirstein suffered multiple injuries as a result of Ibarra’s attack, including

a broken nose, fractured eye socket, fractured wrist, lacerations, bruising, and injuries to

spinal discs in his neck and back.

       The City filed a plea to the jurisdiction asserting governmental immunity, and

Kirstein filed a response in opposition. In his response, Kirstein argued that the City’s

actions violated the City’s jail rules and regulations, which required: “segregation of all

potentially dangerous inmates from the general jail population;” “to immediately transfer



                                                2
either Mr. Ibarra or Mr. Kirstein to the Cameron County Jail where either could have been

adequately segregated;” that the jailers receive training “at the time they were assigned;”

and that the jailers not “watch television at the ‘booking desk’ . . . thereby taking their

attention away” from the detainees. Kirstein further argued that the City’s jail lacked

“adequate video and audio monitoring devices of jail cells.” Kirstein stated that “his claim

arose out of the antecedent negligence of the City’s employees” and that “his injuries

were proximately caused by negligent actions involving a ‘condition or use’ of tangible or

real property (i.e. a jail).”

        The trial court granted the City’s plea. This appeal followed.

                                     II.   DISCUSSION

A. Standard of Review

        A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of

subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its

purpose is to defeat a cause of action without regard to whether the claims asserted have

merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the

disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623,

632 (Tex. 2015). The plaintiff has the burden to allege facts that affirmatively demonstrate

the trial court’s jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d

864, 867 (Tex. 2002). We construe the pleadings liberally in favor of the plaintiff and look

to the pleader’s intent. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d

922, 927 (Tex. 2015) (per curiam). If the pleadings generate a fact question regarding

the jurisdictional issue, a court cannot sustain the plea to the jurisdiction. Id. at 927. If




                                               3
jurisdictional facts are disputed, we consider any evidence submitted by the parties to the

trial court. Blue, 34 S.W.3d at 555.

B. Applicable Law

       Governmental immunity defeats subject-matter jurisdiction in suits against

subdivisions of the State, such as the City, unless that immunity has been clearly and

unambiguously waived by the Legislature. See Sykes, 136 S.W.3d at 638. Governmental

immunity encompasses both immunity from liability and immunity from suit. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims

Act (TTCA) waives governmental immunity for “personal injury and death [proximately]

caused by a condition or use of tangible personal or real property if the government 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); see Miranda, 133 S.W.3d at 224; Jefferson

County v. Farris, 569 S.W.3d 814, 823 (Tex. App.—Houston [1st Dist.] 2018, pet. filed)

(per curiam). Thus, “[t]o state a claim under the [TTCA], a plaintiff must allege an injury

resulting from the ‘condition or use of tangible personal or real property.’” Tex. Dep’t of

Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021(2). “Use” has been defined in the context of the TTCA as “to put or bring

into action or service; to employ for or apply to a given purpose.”        Tex. Nat. Res.

Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001); Vela v. City of McAllen,

894 S.W.2d 836, 840 (Tex. App.—Corpus Christi–Edinburg 1995, no writ).

C. Analysis

       By his sole issue, Kirstein argues the trial court erred when it granted the City’s

plea to the jurisdiction.



                                            4
       First, we address Kirstein’s contention that his injuries were caused by the

“condition or use” of the City’s jail and jail cell because the City lacked adequate facilities

to segregate and monitor inmates such as Kirstein and Ibarra. For immunity to be waived

under the TTCA, the property must be more than a condition that makes the injury

possible. Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339,

343 (Tex. 1998). In other words, usage of the property itself must have actually caused

the injury. Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex. App.—El Paso 2005,

no pet.); Renteria v. Hous. Auth. of City of El Paso, 96 S.W.3d 454, 458–59 (Tex. App.—

El Paso 2002, pet. denied); San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 35–36

(Tex. App.—San Antonio 1998, pet. denied). The injury must be proximately caused by

the condition or use of the property and incidental involvement of the property is

insufficient. See Bossley, 968 S.W.2d at 343; Ordonez, 224 S.W.3d at 244. “Although a

room may be part of the context and condition that made a personal injury possible, such

a setting without more, cannot satisfy the requirement of proximate cause under the

[TTCA].” Ordonez, 224 S.W.3d at 244 (citing Scott v. Prairie View A & M Univ., 7 S.W.3d

717, 720 (Tex. App.—Houston 1999, pet. denied)).

       Kirstein’s claim concerning “real property (i.e., a jail)” does not allege more than

mere incidental involvement of the jail and the cell he was placed in, and he has not

shown that the condition or use of the jail and holding cell were substantial factors in

bringing about his injuries. While not placing Kirstein in the cell with Ibarra may have

prevented him from being attacked, the cell or jail itself was not the proximate cause of

Kirstein’s injuries. See Hardin Cty. Sheriff’s Dep’t v. Smith, 290 S.W.3d 550, 553 (Tex.

App.—Beaumont 2009, no pet.) (“Because a jail cell that confines its occupant is



                                              5
operating as intended, its use to confine a person lacks the required causal nexus if the

cell merely provides the condition that made a personal injury possible.”); Ordonez, 224

S.W.3d at 244 (concluding that a holding tank was not the proximate cause of decedent’s

injuries when decedent was placed in a holding tank with rival gang members and

subsequently beaten to death). Accordingly, we reject Kirstein’s argument that the City’s

immunity was waived because the City lacked adequate facilities for segregating and

monitoring inmates such as Kirstein and Ibarra.

       Next, Kirstein argues that the City’s immunity was waived because the it failed to

immediately transfer him or Ibarra to the Cameron County Jail. However, this argument

also fails because there was no condition or use of real or personal property by the City

which allegedly caused Kirstein’s injuries.        See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021(2); Bossley, 968 S.W.2d at 343; Smith, 290 S.W.3d at 553; Ordonez, 224

S.W.3d at 244; Koehler, 981 S.W.2d 32, 35–36; see also Tex. Dep’t of Crim. Justice v.

Miller, 51 S.W.3d 583, 587 (Tex. 2001) (noting that failure to use or the non-use of

property does not waive sovereign immunity under the TTCA). Thus, we reject this

argument.

       Kirstein also argues that the City’s immunity was waived because it was negligent

in not providing jailers any “jail detention training” at the time they were assigned as jailers

and because the “jailers failed to follow the guidelines they were taught in their training

courses paid for by the City of South Padre Island . . . .” “We have long held that

information is not tangible personal property, since it is an abstract concept that lacks

corporeal, physical, or palpable qualities.” Petta, 44 S.W.3d at 580. “[S]imply reducing

information to writing on paper does not make the information ‘tangible personal



                                               6
property.’” Id. “[W]hile instructional manuals can be seen and touched, the Legislature

has not waived immunity for negligence involving the use, misuse, or non-use of the

information they contain.”         Id. at 581.      Because written information in the form of

instructions and manuals is not tangible personal property, we conclude that the

information contained in the City’s policy and training manuals does not give rise to a

claim under the TTCA. See id. We also reject Kirstein’s argument that the City’s immunity

was waived due to a lack of training because this argument does not involve a condition

or use of personal or real property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).

        Finally, Kirstein presents various arguments regarding the City’s negligent

implementation of policies and regulations in support of his contention that the City’s

immunity was waived.             The TTCA waives sovereign immunity for the negligent

implementation of a formulated discretionary policy, although immunity is not waived for

the negligent formulation of a discretionary policy,1 so long as the plaintiff suffers injury

meeting the requirements in § 101.021(2)—i.e., that the injury be caused by a condition

or use of real or personal property. Petta, 44 S.W.3d at 580 (“We have also said . . . that

the Tort Claims Act waives sovereign immunity from suit for claims that an officer

negligently carried out governmental policy.”); City of Brownsville v. Alvarado, 897 S.W.2d

750, 754 (Tex. 1995); Nueces County v. Ferguson, 97 S.W.3d 205, 223 (Tex. App.—

Corpus Christi–Edinburg 2002, no pet.) (“Since Ferguson did not assert any claim that



        1   While discretionary policy decisions are exempt from TTCA waivers, decisions and actions at the
operational level are not. State v. Terrell, 588 S.W.2d 784, 787–88 (Tex. 1979). This distinction prevents
judicial review of policy decisions while allowing for liability for the negligent carrying out of any policy
decision made. Id. at 788. Thus, for example, the decision by a governmental unit whether and how to
detect speeding individuals is not reviewable, but once a policy is enacted that speeding individuals will be
detected, damages arising out of the negligent implementation of such policy can subject the governmental
unit to liability. Id.; see also City of Mission v. Cantu, 89 S.W.3d 795, 812–13 (Tex. App.—Corpus Christi–
Edinburg 2002, no pet.).

                                                     7
fell within the scope of § 101.021 of the tort claims act, the theory of negligent

implementation liability does not arise in this case.”); Guadalupe-Blanco River Auth. v.

Pitonyak, 84 S.W.3d 326, 342 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.)

(reasoning that an assertion of the negligent implementation theory of liability arises only

after a plaintiff has established a waiver of immunity under § 101.021 of the TTCA); see

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). Furthermore, “[t]o state a negligent

implementation claim, a plaintiff must identify a particular policy adopted by the

governmental unit and state facts which raise a claim that the policy was negligently

carried out at the operational level.” Ferguson, 97 S.W.3d at 223; see Tarrant Cty. Water

Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex. App.—Fort

Worth 1989, writ denied) (concluding that allegation of a general policy to warn of danger

did not make the State liable for the particular decision to design a bridge without lights).

       Kirstein alleges the City was negligent in the implementation of the following: (1)

jail rules and regulations requiring the segregation of all potentially dangerous inmates

from the general jail population and (2) jail rules and regulations requiring immediate

transfer to the Cameron County jail of potentially dangerous inmates. Kirstein also argued

that (3) the jailers were “allowed to watch television at the ‘booking desk’ at the time of

Mr. Kirstein’s incarceration thereby taking their attention away from [the] violent assault

by Mr. Ibarra taking place in their jail[,] in violation of the [City’s] jail rules and regulations.”

       As previously concluded, Kirstein’s claims regarding the implementation of jail

rules and regulations requiring (1) the immediate transfer to Cameron County jail of

potentially dangerous inmates and (2) the segregation of all potentially dangerous

inmates fail because there was no condition or use of real or personal property on behalf



                                                 8
of the City that was the proximate cause of Kirstein’s injuries. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(2); Miller, 51 S.W.3d at 587; Bossley, 968 S.W.2d at 343. Thus,

we are left with Kirstein’s claim that the jailers were allowed to watch television at the

booking desk in violation of the City’s jail rules and regulations.

       Kirstein relies heavily and puts great emphasis on City of Waco v. Hester in support

of his contention that the City’s immunity was waived due to negligent implementation of

the City’s policies and regulations. See 805 S.W.2d 807, 812–13, 815 (Tex. App.—Waco

1990, writ denied). Hester involved an appeal from a jury verdict in favor of a former

inmate who sued the city of Waco and its police chief under the TTCA after being sexually

assaulted by another inmate in jail. Id. at 809–10. In Hester, a jury determined that the

City’s negligent implementation of policies concerning the use of tangible personal or real

property proximately caused Hester injuries. Id. at 813. Hester introduced into evidence

the City’s written policies which required jail personnel to protect inmates from harm and

to segregate inmates known to be dangerous or homosexual for purposes of control,

discipline, or health reasons. See id. at 812. Hester alleged that: (1) the City’s officers

and jailers either knew or should have known of the aggressor’s violent and homosexual

tendencies, (2) the jail lacked adequate facilities for segregating inmates, (3) the City

failed to transfer the aggressor to the county jail where he could be adequately

segregated, (4) the jail lacked adequate facilities for monitoring inmates, (5) jailers were

allowed to watch commercial television at the “booking desk”, (6) jailers were not given

any training before being assigned to duty, and (7) jailers were warned prior to the assault

that the aggressor was intimidating Hester but they ignored the warning. Id. at 812–13.

The Waco court affirmed the jury’s verdict and concluded that there was legally and



                                              9
factually sufficient evidence for the jury to have found that the property “used” in that case

was the room in which the attack took place, the closed steel door that deterred proper

surveillance, and the television set the guards were known to occasionally watch instead

of the surveillance monitors. Id. at 815.

       The factual allegations in Hester are nearly identical to the ones brought by

Kirstein. However, as previously discussed, several of the arguments brought forth in

Hester now fail due to subsequent precedent established by the Texas Supreme Court.

See Petta, 44 S.W.3d at 580; Bossley, 968 S.W.2d at 343. We further note that Hester

has been criticized by several of our sister courts. See Ordonez, 224 S.W.3d at 245

(concluding that Hester does not hold that the negligent implementation of policy is

sufficient, standing alone, to waive immunity and that appellant did not show that the

condition or use of the jail’s holding tank was a substantial factor in bringing inmate’s

injuries); Tarrant Cty. Hosp. Dist. v. Henry, 52 S.W.3d 434, 442 n.23 (Tex. App.—Fort

Worth 2001, no pet.) (declining to follow Hester because it did not consider “whether

[Hester] alleged sufficient facts to state a negligence claim based on a condition or use

of property under § 101.021(2)”); Scott, 7 S.W.3d at 720 (disagreeing with the reasoning

in Hester and stating that the cell and door in Hester were not defective and too attenuated

from the actual injury to be considered the proximate cause of Hester’s injury); Laman v.

Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.—Eastland 1998, pet. denied)

(refusing to follow Hester to the extent it holds that a room is personalty or that a cause

of action will lie for the negligent use of real property and noting that Hester is better

supported by the court’s reasoning that the television set was tangible personal property),

disapproved on other grounds by Mansions in the Forest, L.P. v. Montgomery County,



                                             10
365 S.W.3d 314, 317 (Tex. 2012). Furthermore, the discussion in Hester cited by Kirstein

analyzed whether there was factually sufficient evidence supporting the jury’s finding, not

whether immunity had been waived under § 101.021(2) of the TTCA. See Henry, 52

S.W.3d at 442 n.43; Hester, 805 S.W.2d at 813–15. Two of our sister courts, though,

have hinted or stated that a plausible reasoning behind the conclusion in Hester was that

the television set was tangible personal property that was used by the City of Waco. See

Scott, 7 S.W.3d at 720; Laman, 970 S.W.2d at 671–72. Nevertheless, as discussed

below, we conclude that Hester does not support the conclusion that the use of the

television here was the proximate cause of Kirstein’s injuries and, thus, the City’s

immunity was not waived.

       “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.” Bossley,

968 S.W.3d at 343. Proximate cause requires some nexus between the use of the

property and the plaintiff’s injury. Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex.

2009); see City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016). The components

of proximate cause are (1) cause-in-fact and (2) foreseeability. Western Invs., Inc. v.

Urena, 162 S.W.3d 547, 551 (Tex. 2005); HIS Cedars Treatment Ctr. v. Mason, 143

S.W.3d 794, 798 (Tex. 2004).

       The test for cause-in-fact is whether the negligent act was a substantial factor in

bringing about injury and whether the injury would have occurred without the act or

omission. Del Lago Partners v. Smith, 307 S.W.3d 762, 774 (Tex. 2010); Western Invs.,

162 S.W.3d 551. Cause-in-fact must be proved by evidence of probative force—either

direct or circumstantial—and not by mere conjecture, guess, or speculation. Excel Corp.



                                            11
v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002); see Western Invs., 162 S.W.3d at 551.

There is no cause-in-fact when the defendant’s negligent conduct is too remotely

connected with the plaintiff’s injury. Mason, 143 S.W.3d at 799 (noting that “the conduct

of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a

substantial factor in bringing about the harm”); Doe v. Boys Club, 907 S.W.2d 472, 477

(Tex. 1995). An event that starts a chain of events can be too attenuated from an injury

to cause it. Curnel v. Hous. Methodist Hosp.-Willowbrook, 562 S.W.3d 553, 565 (Tex.

App.—Houston [1st Dist.] 2018, no pet.). Thus, proof that personal property was merely

involved in the claim, without more, does not satisfy the causation requirement under the

TTCA. Posey, 290 S.W.3d at 872; Bossley, 968 S.W.2d at 343; Miller, 51 S.W.3d at 587.

Instead, “[u]sing that property must have actually caused the injury.” Miller, 51 S.W.3d at

588 (citing White, 46 S.W.3d at 869).

       Here, the use of the television by the jailers at the desk was not the cause-in-fact

of Kirstein’s injuries because the use of the television by the jailers is too attenuated from

the injuries. See Miller, 51 S.W.3d at 588; Curnel, 562 S.W.3d at 565; Spindletop MHMR

Ctr. v. Beauchamp ex. rel. Humphrey, 130 S.W.3d 368, 372 (Tex. App.—Beaumont 2004,

pet. denied); Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511, 512–13 (Tex. App.—

Fort Worth 2001, pet. denied). First, according to Kirstein’s argument, the use of the

television kept the jailers from supervising the inmates. The failure to supervise was an

earlier link in the causation chain, and failure to supervise does not waive immunity under

the TTCA as it does not involve the use or condition of real or personal property. See

Tex. S. Univ. v. Mouton, 541 S.W.3d 908, 914 (Tex. App.—Houston [14th Dist.] 2018, no

pet.) (“We initially note that a failure to supervise or provide security, standing alone, is a



                                              12
failure to act, not a condition or use of property waiving liability under the Act.”);

Archibeque v. N. Tex. State Hosp.-Wichita Falls Campus, 115 S.W.3d 154, 160 (Tex.

App.—Fort Worth 2003, no pet.) (concluding that a claim for failure to monitor patient did

not fall under TTCA’s property waiver because “[t]he nonuse of property cannot support

a claim under the Act”); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 863 (Tex.

App.—Austin 2001, pet. denied) (“If the [school bus driver’s] act involved only supervision

or control [of children passengers], immunity has not been waived . . . .”). A second link

in the chain of causation between the jailers’ use of the television and Kirstein’s injuries

is Ibarra. These two links in the causation chain indicate that the use of the television by

the jailers is too attenuated from Kirstein’s injuries to be their cause-in-fact. See Curnel,

562 S.W.3d at 565; see also Bossley, 968 S.W.2d at 343. Thus, the use of the television

by the jailers was not the proximate cause of Kirstein’s injuries. See Miller, 51 S.W.3d at

588; Humphrey, 130 S.W.3d at 372; Tomlinson, 48 S.W.3d at 512–13; Hendrix v. Bexar

Cty. Hosp. Dist., 31 S.W.3d 661, 663 (Tex. App.—San Antonio 2000, pet. denied); see

also Bossley, 968 S.W.2d at 343. Accordingly, we reject Kirstein’s reliance on Hester

and conclude that, under the facts of this case, the use of the television by the jailers and

the jailers’ failure to supervise Ibarra and Kirstein did not waive the City’s immunity under

the TTCA.2



        2  Kirstein also cites and relies on an unpublished opinion of this Court. See Martinez v. City of
Brownsville, No. 13-00-00425-CV, 2001 WL 1002399, at *7–11 (Tex. App.—Corpus Christi–Edinburg Aug.
31, 2001, pet. denied) (not designated for publication). However, Martinez was decided before and is
inconsistent with the Texas Supreme Court decisions in San Antonio State Hospital v. Cowan and Dallas
County v. Posey. Rogge v. City of Richmond, 506 S.W.3d 570, 577 (Tex. App.—Houston [1st Dist.] 2016,
no pet.); see Dallas County v. Posey, 290 S.W.3d 869, 871–72 (Tex. 2009) (per curiam); San Antonio State
Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004); Johnson v. Johnson County, 251 S.W.3d 107, 110
(Tex. App.—Waco 2008, pet. denied). We follow the precedent the Texas Supreme Court has established.
See McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 457 n.2 (Tex. App.—Corpus Christi–Edinburg
2018, no pet.).

                                                   13
      We overrule Kirstein’s sole issue.

                                 III.   CONCLUSION

      We affirm the trial court’s judgment.

                                                     DORI CONTRERAS
                                                     Chief Justice

Delivered and filed the 5th
day of September, 2019.




                                              14
