            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-02-00389-CV



                                       Kristy Bonham, Appellant

                                                     v.

                          Texas Department of Criminal Justice, Appellee




         FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
           NO. 19706-A, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING




                                              OPINION


                 Kristy Bonham appeals the district court=s grant of the Texas Department of Criminal

Justice=s (the ADepartment@) plea to the jurisdiction and the final judgment that dismissed her claims against

the Department. At issue is whether Bonham=s claims against the Department to recover damages related

to injuries she sustained after being sexually assaulted at a state jail facility were within the Texas Tort

Claims Act=s1 (the AAct@) waiver of sovereign immunity. Because we conclude that Bonham=s claims were

not within the Act=s waiver of sovereign immunity, we will affirm the district court=s judgment.




        1
            See Tex. Civ. Prac. & Rem. Code Ann. '' 101.001-.109 (West 1997 & Supp. 2003).
                               STANDARD AND SCOPE OF REVIEW

                 It is a fundamental rule of Texas jurisprudence that the State of Texas, its agencies, and its

officers may not be sued without the consent of the legislature. Texas Natural Res. Conservation

Comm=n v. IT-Davey, 74 S.W.3d 849, 853-54 (Tex. 2001); Hosner v. DeYoung, 1 Tex. 764, 769

(1847). Thus, the State of Texas is immune from suit unless the State consents to being sued. See

Missouri Pac. R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). In the

absence of the State=s consent to suit, a trial court lacks subject-matter jurisdiction. Texas Dep=t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The lack of subject-matter jurisdiction is properly

raised by a plea to the jurisdiction. Id.

                 The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has

subject-matter jurisdiction. Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993). In a suit against the State, the plaintiff must allege consent to suit either by reference to a statute or

to express legislative permission. Jones, 8 S.W.3d at 638. Here, Bonham contends that her petition

alleged claims against the Department within the Act=s limited waiver of sovereign immunity. See Tex. Civ.

Prac. & Rem. Code Ann. ' 101.021 (West 1997).

                 We review de novo the district court=s ruling on a plea to the jurisdiction. See State Dep=t

of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2001); Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Unless a defendant pleads and proves that allegations in a

plaintiff=s petition were fraudulently made, we take as true the facts pleaded in the petition to determine

whether those facts support jurisdiction in the trial court. Texas Ass=n of Bus., 852 S.W.2d at 446. If


                                                       2
necessary, we may review the entire record to determine if the trial court had jurisdiction. Bland ISD v.

Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). As the Department has not asserted any fraudulent pleading,

we accept Bonham=s factual allegations as true. If Bonham=s petition fails to allege jurisdictional facts, then

her claims are subject to dismissal if it is impossible to amend her pleadings to confer jurisdiction. Texas

Ass=n of Bus., 852 S.W.2d at 446.


                                             BACKGROUND

                 Bonham was incarcerated at the Ellen Halbert state jail facility (the Afacility@) in Burnet.

Early one morning, after finishing her work detail of cleaning a men=s restroom at the facility, a guard

approached her, pushed her into the restroom, and forced her to have sexual intercourse. The guard

instructed Bonham to say nothing about the incident. After she reported the assault to facility employees,

rather than providing her medical care and investigating her report, Bonham alleged that facility personnel

directed her to not report the assault to the police and then disciplined her for lying. One week later,

Bonham was examined by a physician who reported that Bonham had been forced to have or had had

forcible intercourse. Bonham alleged that facility officials tried to coerce the physician into offering a

different explanation for Bonham=s injuries. Bonham alleged that after she reported the incident to the

Johnson County district attorney, 2 in further retaliation and in an attempt to conceal the incident, facility

officials transferred her to another state jail facility. Although according to policy she should have been

transferred to another substance abuse facility, she was sent to a higher security facility. When officials from


        2
          It is unclear from the record why Bonham reported the incident to the Johnson County district
attorney as the facility is located in Burnet County.

                                                       3
the Johnson County sheriff=s office and the Johnson County probation department attempted to locate

Bonham, they were informed by facility employees that she had been moved to another state jail facility.

The facility=s officials refused to disclose Bonham=s whereabouts until the district court issued a bench

warrant which instructed the Department to return her to Johnson County.

                 Later, after Bonham returned to her home, the guard who assaulted her continued to

intimidate and harass her. Bonham sued to recover damages she sustained as a result of the guard=s assault

as well as damages related to the subsequent discipline, retaliation, and harassment. Among others,

Bonham sued the Department pursuant to the Act alleging that the Department was liable based on the

facility=s defective layout and a lack of integral safety components, that is, that the facility lacked adequate

surveillance equipment, either of which constituted a condition or misuse of tangible property that

proximately caused her damages. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2) (West 1997).

She alleged that these conditions or misuses of property made it possible for the guard to perpetrate the

sexual assault undetected by other employees, and, if the facility=s men=s restroom had been equipped with

surveillance equipment, the assault could have been prevented. Further, Bonham alleged that the

Department=s negligence in laying out the facility and the Department=s lack of adequate surveillance

equipment prevented facility personnel from supervising Bonham while she was on work detail in the men=s

restroom.

                 The Department filed a plea to the jurisdiction, asserting that Bonham=s petition failed to

allege facts that would support a claim under section 101.021(2) of the Act and, therefore, sovereign

immunity deprived the court of subject-matter jurisdiction over her claims against it for damages. Bonham


                                                       4
responded to the plea to the jurisdiction and concurrently filed a second amended petition. The Department

replied to Bonham=s response. The district court granted the plea to the jurisdiction, dismissed Bonham=s

claims against the Department, and severed Bonham=s claims against the other defendants into a new cause

thereby rendering the dismissal of Bonham=s claims against the Department final for purposes of appeal.3


                                               DISCUSSION

                 As an agency of the State, the Department is immune from suit and cannot be liable for

damages unless Bonham=s claims fall within the statutory waiver of sovereign immunity under the Act. See

Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31 (Tex. 1983). Sovereign immunity is waived and suit

may be brought against a governmental unit for personal injury in three instances, Ause of publicly owned

automobiles, premises defects, and injuries arising out of conditions or use of property.@ Texas Dep=t of

Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting Lowe v. Texas Tech Univ., 540 S.W.2d

297, 298 (Tex. 1976)); Tex. Civ. Prac. & Rem. Code Ann. ' 101.021. The supreme court has held that

when a personal injury claim is based upon a condition or use of property, the injury must have been

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

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). To be a proximate cause, the negligent

conduct must involve some condition or some use of the tangible property. Salcedo, 659 S.W.2d at 33.

While involvement of property is necessary, such a fact does not always lead to the conclusion that immunity

        3
           Severed into the new cause are Bonham=s claims against the guard, in his official and individual
capacities, the warden of the facility, a captain at the facility, and the executive director of the Department.




                                                       5
has been waived. Bossley, 968 S.W.2d at 342. The Act=s waiver of immunity does not extend to damages

arising from an intentional tort or from governmental discretionary conduct. Tex. Civ. Prac. & Rem. Code

Ann. ' 101.057(2) (West 1997).

                 Bonham contends that the district court erred in granting the plea to the jurisdiction because

her second amended petition sufficiently alleged that a condition or use of tangible property proximately

caused her injuries, and therefore under the Act the Department=s sovereign immunity was waived. Bonham

contends that a proximate cause of her damages was the condition or use of tangible propertyCthe

substandard, defective layout of the facility, and further that the facility lacked an integral safety component,

surveillance equipment that would monitor the men=s restroom.

                 The Department responds that the true substance of Bonham=s claims was that the

Department failed to protect her from the guard=s intentional assault, a claim that is expressly excluded from

the Act=s waiver of sovereign immunity. See id. (waiver of immunity does not apply to claims for damages

arising out of assault, battery or other intentional tort). The Department contends that Bonham=s claims

were based on intervening intentional conduct along with the Department=s discretionary policy decisions for

which there is no waiver of sovereign immunity. Additionally, the Department contends that the restroom

only furnished the location that allowed the guard to carry out his intentional assault, that the layout did not

proximately cause her damages, and Bonham=s claims against the Department, therefore, were not within

the Act=s waiver of sovereign immunity. Further, the Department contends that any lack of surveillance

equipment was a Anonuse@ of property, and not a missing integral safety component. Finally, the




                                                       6
Department contends the decision about whether to include surveillance equipment at the facility to monitor

the men=s restroom was a discretionary policy decision for which immunity is not waived.

Did defective layout constitute a condition or use under the Act?

                 First, we address Bonham=s contention that the defect layout qualifies as a condition or use

of property that proximately caused her injuries and for which sovereign immunity is waived. To provide

guidance to courts faced with determining whether a condition or use of property is a proximate cause of

damages, the supreme court has held that A[p]roperty does not cause injury if it does no more than furnish

the condition that makes the injury possible.@ Bossley, 968 S.W.2d at 343 (citing Union Pump Co. v.

Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)). Although a room may be a 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 Act. Scott v. Prairie View A&M Univ., 7 S.W.3d 717, 720 (Tex.

App.CHouston [1st Dist.] 1999, pet. denied); see also Hendrix v. Bexar County Hosp. Dist., 31 S.W.3d

661, 663 (Tex. App.CSan Antonio 2000, pet. denied) (citing San Antonio State Hosp. v. Koehler, 981

S.W.2d 32, 37 (Tex. App.CSan Antonio 1998, pet. denied)) (condition must be instrument or direct

device causing plaintiff=s harm).

                 The Department argues that the facility=s layout was not a proximate cause of Bonham=s

assault but only furnished the condition to make possible the intervening intentional acts of the guard, which

were the proximate cause of Bonham=s damages. The Department contends that substantively, Bonham=s

complaint against the Department is that the facility failed to supervise its employees and not that the use or

condition of the state=s property, the layout of the facility, proximately caused her damages. Bonham


                                                      7
contends that there was no intervening cause, and that the layout of the facility proximately caused her

damages.

                Here, the guard=s sexual assault is the type of intervening intentional act contemplated and

referred to in the caselaw as an example of when sovereign immunity is not waived. See Scott, 7 S.W.3d at

720; see also Texas Dep=t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 867-68

(Tex. App.CFort Worth 2001, no pet.); Hendrix, 31 S.W.3d at 663; Lamar Univ. v. Doe, 971 S.W.2d

191, 196 (Tex. App.CBeaumont 1998, no pet.) (holding sexual assaults were intervening intentional acts

that constituted proximate cause while use or condition of state property furnished only conditions for

intentional act to occur). Although the layout of the facility was part of the context of the guard=s sexual

assault on Bonham, it was, at most, a condition that made the guard=s intervening intentional act possible.

We overrule Bonham=s contention that the facility=s layout constituted a use or condition that proximately

caused her injuries and that her claim was within the Act=s waiver of sovereign immunity.


Did lack of surveillance equipment constitute a condition or use under the Act?

                We next address Bonham=s contention that the lack of an integral safety component,

surveillance equipment that would monitor the men=s restroom, was a use or condition of tangible property

that proximately caused her injury and was a claim for which sovereign immunity was waived. Regarding

this claim, the Department contends that the lack of surveillance equipment did not constitute a lack of an

integral safety component, but was a claim of nonuse of tangible property, a claim for which sovereign

immunity is not waived. The term Ause@ means Ato put or bring into action or service; to employ for or apply

to a given purpose.@ Marroquin v. Life Mgmt. Ctr., 927 S.W.2d 228, 230-31 (Tex. App.CEl Paso

                                                     8
1996, writ dism=d w.o.j.) (quoting LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex. 1992)).

By contrast, the nonuse of property cannot support a claim under the Act. Kassen v. Hatley, 887 S.W.2d

4, 14 (Tex. 1994) (failure to provide medication was nonuse and did not constitute use of tangible property

that caused death).

                 Waiver of immunity due to the lack of an integral safety component is Alimited to claims in

which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and

that the lack of this integral component led to the plaintiff=s injuries.@ Kerrville State Hosp. v. Clark, 923

S.W.2d 582, 585 (Tex. 1996); see also Overton Mem=l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex.

1975) (immunity waived when plaintiff alleged hospital provided hospital bed lacking integral safety

component, bed rails, which led to injury); Lowe, 540 S.W.2d at 298 (immunity waived when plaintiff

alleged university provided football uniform lacking integral safety component, proper protective knee

equipment, which led to injury). In these cases, state property actually provided to a plaintiff lacked some

integral safety component. That is not so in the situation presented here.

                 The Department also relies upon Marroquin v. Life Managment Center, in which the

plaintiff alleged that the lack of locked doors, alarms and video surveillance was a lack of an integral safety

component and constituted a condition of the state=s property that proximately caused a mental patient=s

injuries related to sexual activity with another patient. 927 S.W.2d at 232. The Marroquin court held that

the allegation of unlocked doors and the lack of alarms and video surveillance did not involve missing

integral safety components, but were claims of nonuse of certain items. Further, the Marroquin court ruled




                                                      9
that the claims involved discretionary governmental policy decisions for which sovereign immunity is not

waived. Id.

                Like Marroquin, in this instance, Bonham=s claim that the lack of surveillance equipment in

the men=s restroom constituted a missing integral safety component was an allegation of a nonuse of

surveillance equipment. Additionally, we are not persuaded by Bonham=s contention that surveillance

equipment is an integral safety component of a men=s restroom. Further, the Department=s decision about

whether or where to locate surveillance equipment within the facility would be a discretionary governmental

policy decision for which sovereign immunity is not waived.

                We overrule Bonham=s contention that the lack of surveillance equipment constituted a claim

of a lack of an integral safety component, the lack of which proximately caused her damages, and was a

claim for which sovereign immunity was waived under the Act.


Is Michael v. Travis County Housing Authority dispositive?

                Throughout her brief, Bonham contends that Michael v. Travis County Housing

Authority is dispositive of this case. 995 S.W.2d 909 (Tex. App.CAustin 1999, no pet.). In Michael, the

plaintiff sued the Housing Authority for personal injuries sustained by her child when the child was attacked

by two pit bull dogs. The dogs were owned by a resident of the Housing Authority=s development. Due to

the dogs= vicious nature, the Housing Authority built a fence around the dogs= owner=s yard specifically to

keep the dogs in the yard and to protect passers-by from the dogs. Id. at 914. The dogs escaped through

holes in the fence and attacked the plaintiff=s eight-year-old daughter on the nearby sidewalk. Id. at 911.

The Michael court concluded that an allegation that the provided fence had large holes, when the purpose

                                                    10
of the fence was to restrain the vicious dogs, was a condition of property that was not too attenuated from

the girl=s injuries and was a claim within the statutory waiver of sovereign immunity. Id. Compare with

Koehler, 981 S.W.2d at 37 (patient escaped mental hospital, accompanied by male acquaintance, through

hole in fence surrounding hospital and acquaintance later sexually assaulted patient at boarding house;

holding intervening criminal act of acquaintance attenuated causal nexus between hole in hospital=s fence and

injury).

                We find the situation in Michael distinguishable from the facts before us. In Michael, the

fence lacked integral safety components; it had large holes, which were directly linked to the dogs= escape,

the dogs= attack of the girl on the adjacent sidewalk, and the injuries she suffered in the attack. Unlike the

defective fence in Michael, Bonham=s claims do not include any failure of any essential purpose or use of

the facility=s men=s restroom. Here, the men=s restroom provided no more than the condition for the guard=s

intervening intentional acts, which proximately caused Bonham=s injuries. We overrule Bonham=s contention

that the Michael opinion is dispositive of this case.


                                             CONCLUSION

                ABy its very nature, the limited waiver of sovereign immunity in the [Act] will leave

governments immune from many claimsCincluding, as here, claims involving appalling facts.@ Hendrix, 31

S.W.3d at 663. After reviewing Bonham=s allegations, taking them as true, and construing them in her

favor, we conclude that the petition failed to present a claim against the Department for which sovereign

immunity was waived by the Act. The guard=s intervening intentional acts attenuated the causal nexus

between the Department=s property and Bonham=s injuries so that Bonham=s claims against the Department

                                                        11
are not within the scope of the Act=s waiver of sovereign immunity. Further, any decisions about whether or

where surveillance equipment would be placed at the facility are discretionary decisions for which sovereign

immunity is not waived. Accordingly, the district court was without subject-matter jurisdiction over

Bonham=s claims against the Department. We affirm the district court=s judgment granting the Department=s

plea to the jurisdiction and dismissing Bonham=s claims against the Department.




                                                 ________________________________________

                                                 Lee Yeakel, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: March 6, 2003




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