                                                                                          ACCEPTED
                                                                                          01-15-00004
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 7/1/2015 11:23:23 AM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                              No. 01-15-00004-CV
                         IN THE COURT OF APPEALS
                                                                    FILED IN
                                                             1st COURT OF APPEALS
                    FOR THE FIRST JUDICIAL DISTRICT              HOUSTON, TEXAS
                                                             7/1/2015 11:23:23 AM
                            OF TEXAS AT HOUSTON
                                                             CHRISTOPHER A. PRINE
                                                                     Clerk
          _________________________________________________
    NIKKI SIDES INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
                       THOMAS MIDDLETON,
                                   Appellant,
                                       v.
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                   Appellees
          _________________________________________________
         On Appeal from the 400th Judicial District of Fort Bend County,
                Texas, Trial Court Cause No. 14-DCV-212749
           ________________________________________________
                         APPELLEE’S BRIEF
          _________________________________________________
KEN PAXTON                                  KAREN D. MATLOCK
Attorney General of Texas                   Assistant Attorney General
                                            Chief, Law Enforcement Defense
CHARLES E. ROY                              Division
First Assistant Attorney General
                                            KIM COOGAN
JAMES E. DAVIS                              Assistant Attorney General
Deputy Attorney General for                 Texas Bar No. 00783867
Civil Litigation                            Law Enforcement Defense Division
                                            Office of the Attorney General
                                            Post Office Box 12548
                                            Austin, Texas 78711-2548
                                            Phone:       (512) 463-2080
                                            Facsimile: (512) 936-2109

                                        i
                                        TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ...........................................................iv
INDEX OF AUTHORITIES...................................................................................... v
STATEMENT OF THE CASE .................................................................................. 1
ISSUES PRESENTED............................................................................................... 2
         I.       Did plaintiff’s pleading of use of property state a claim for which
                  sovereign immunity is waived under the Texas Tort Claims Act?

         II.      Did plaintiff’s pleading of condition of property state a claim for
                  which sovereign immunity is waived under the Texas Tort
                  Claims Act?
         III.     Did the trial court err by denying plaintiff’s request to amend her
                  petition?
         IV.      Did the trial court err by denying plaintiff an evidentiary hearing
                  on the Plea to the Jurisdiction?

         V.       Did the trial court err in dismissing plaintiff’s claim for
                  deprivation of rights under the Texas Constitution?

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT ............................................................................................................. 3

         Reply to Issue I:          Plaintiff did not plead sufficient facts to establish a
                                    waiver of sovereign immunity based on use of
                                    property............................................................................. 3

         Reply to Issue II: Plaintiff did not plead sufficient facts to establish a
                            waiver of sovereign immunity based on condition of
                            property............................................................................. 8
         Reply to Issue III: The trial court did not err by denying Plaintiff’s
                            request to amend her petition or to hold an
                            evidentiary hearing on the jurisdictional facts ................. 9

                                                           ii
         Reply to Issue IV: The trial court did not err by dismissing plaintiff’s
                            claim for deprivation of rights under the Texas
                            Constitution..................................................................... 12

CONCLUSION ........................................................................................................ 15

PRAYER .................................................................................................................. 16

CERTIFICATE OF SERVICE ................................................................................ 18

CERTIFICATE OF COMPLIANCE ....................................................................... 19




                                                            iii
                  IDENTITY OF PARTIES AND COUNSEL

DEFENDANT-APPELLEE
Texas Department of Criminal Justice
Counsel:
Kim Coogan
State Bar No. 00783867
Assistant Attorney General
Office of the Attorney General
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2080
(512) 936-2109 – facsimile
Kim.coogan@texasattorneygeneral.gov


PLAINTIFF-APPELLANT

Nikki Sides, individually and on behalf of the estate of Thomas Middleton

Counsel:
Laurence W. Watts
State Bar No. 20981000
Melissa Azadeh
State Bar No. 24064851
Watts & Company Lawyers, Ltd.
P. O. Box 2214
Missouri City, Texas 77459
(281) 431-1500
(877) 797-4055 – facsimile
wattstrial@gmail.com

William F. Carter
State Bar No. 03932800
108 E. William J. Bryan Pkwy.
Bryan, Texas 77803-5334
(979) 779-0712
(979) 779-9243 – facsimile
Wfcarter73@yahoo.com
                                        iv
                                    INDEX OF AUTHORITIES
Case                                                                                                       Page
Allen v. Mauro,
      733 S.W.2d 228, 230 (Tex. App.-El Paso 1986, writ ref. n.r.e.) ................... 15

Barshop v. Medina Cty. Underground Water Conserv. Dist.,
     925 S.W.2d 618, 623 (Tex. 1996) ................................................................. 15

Bland Indep. Sch. Dist. v. Blue,
      34 S.W.3d 547, 554–55 (Tex. 2000) .......................................................... 9,10

City of Sugarland v. Ballard,
       174 S.W.3d 259, 267-68 (Tex. App.-Houston (1st Dist.) 2005) ..................... 5

County of Cameron v. Brown,
     80 S.W.3d 549, 555 (Texas 2002) ................................................................. 10

Cowan, 128 S.W.3d at 246 ........................................................................................ 5
Dallas County Mental Health and Mental Retardation v. Bossley,
      968 S.W.2d 339, 243 (Tex. 1998) .............................................................. 8,12

Dallas Cnty. v. Posey,
      290 S.W.3d 869, 871 (Tex.2009) ................................................................. 5,8

Federal Savings & Loan v. Glen Ridge I Condo,
     750 S.W.2d 757, 759 (Tex. 1988) ................................................................. 15

Franka v. Velasquez,
     332 S.W.3d 367, 385 (Tex. 2011) ............................................................13,14

Kerrville State Hosp. v. Clark,
      923 S.W.2d 582, 584 (Tex. 1996) ................................................................... 5

Lacy v. Rusk State Hosp.,
      31 S.W.3d 625, 630 (Tex. App.-Tyler 2000, no pet.) ..................................... 5

                                                        v
Land v. Dollar,
      330 U.S. 731, 735 & n. 4, (1947) .................................................................. 10

Larson v. Domestic & Foreign Commerce Corp.,
     337 U.S. 682, (1949)...................................................................................... 10

López v. McMillion,
      113 S.W.3d 447, 450 (Tex.App.-San Antonio 2003, no pet.) ......................... 5

Lowe v. Tex. Tech Univ.,
     540 S.W.2d 297, 300 (Tex. 1976) ................................................................... 7

Nootsie, Ltd. v. Williamson Cty. Appraisal Dist.,
      925 S.W.2d 659, 662 (Tex. 1996) ............................................................14,15

Overton Mem'l Hosp. v. McGuire,
      518 S.W.2d 528, 528–29 (Tex. 1975) ............................................................. 7

Peek v. Equipment Serv. Co. of San Antonio,
      779 S.W.2d 802, 804–05 (Tex. 1989) ........................................................ 9,10

Robinson v. Cent. Tex. MHMR Ctr.,
     780 S.W.2d 169, 169, 171 (Tex. 1989) ........................................................... 7

Rusk State Hospital v. Black,
      392 S.W.3d 88, 97-98 (Tex. 2012) .................................................................. 8

San Antonio State Hosp. v. Cowan,
     128 S.W.3d 244, 245-246 (Tex. 2004) ............................................................ 4

Sanchez v. Tex. Dept. of Human Resources,
     581 S.W.2d 260, 266 (Tex. App.-Corpus Christi 1979, no writ) .................. 15

Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983) .................................................. 13

Tex. Pub. Bldg Authority v. Mattox,
      686 S.W.2d 924, 927 (Tex. 1985) ................................................................. 15

                                                       vi
Tex. Workers Comp. Comm’n v. Garcia,
      893 S.W.2d 504 (Tex. 1995) ......................................................................... 14

Texas A&M University v. Bishop,
      156 S.W.3d 580, 583 (Tex. 2005) ................................................................... 4

Texas Ass'n of Bus. v. Texas Air Control Bd.,
      852 S.W.2d 440, 446 (Tex. 1993) .............................................................. 9,13

Texas Dep't of Corrections v. Herring,
      513 S.W.2d 6, 9–10 (Tex.1974) ...................................................................... 9

Texas Dept. of Criminal Justice v. Miller,
      51 S.W.3d 583, 588 (Tex. 2001) .................................................................. 4,6

Texas Natural Resource Conservation Com'n v. White,
      46 S.W.3d 864,869-70 (Tex. 2001) .............................................................. 5,9

Texas Parks and Wildlife v. Miranda,
      133 SW3d 217 (Tex. 2004) ...................................................................9,10,11

Thomas v. Oldham,
     895 S.W.2d 352, 357 (Tex. 1995) ................................................................. 13

Univ. of Texas M.D. Anderson Cancer Ctr. v. King,
      417 S.W.3d 1, 4-5 (Tex. App. 2013) ............................................................... 7

University of Texas M.D. Anderson Cancer Center v. Baker,
     401 S.W.3d 246, 253 (Houston – 14th 2012) .................................................. 5

Statutes, Codes & Constitution
Tex. Civ. Prac. & Rem. Code §101.002 .................................................................... 2
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 ........................................................ 11
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)...................................................... 4
Tex. Civ. Prac. & Rem. Code §101.106(F) ............................................................. 13

                                                     vii
Tex.Fed.R.Civ.P. 12(b)(1) ....................................................................................... 10
Tex. Gov’t Code §311.021(1) .................................................................................. 14
Tex. Tort Claims Act, Section 101.021 ..................................................................... 3
Texas Constitution, Article 1, Section 13 ................................................................ 12




                                                       viii
                              No. 01-15-00004-CV
                         IN THE COURT OF APPEALS
                    FOR THE FIRST JUDICIAL DISTRICT
                           OF TEXAS AT HOUSTON
           _________________________________________________
    NIKKI SIDES INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
                       THOMAS MIDDLETON,
                                    Appellant,
                                        v.
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                    Appellees
           _________________________________________________
         On Appeal from the 400th Judicial District of Fort Bend County,
                Texas, Trial Court Cause No. 14-DCV-212749
           ________________________________________________
                          APPELLEE’S BRIEF
           _________________________________________________



                         STATEMENT OF THE CASE

     Defendant agrees with plaintiff’s statement of facts except on one point.

Plaintiff alleges that Officer Redwood, the oncoming officer, did not do a physical

check of the dayroom 15-20 minutes after the shift began. Brief at page 4. The

uncontroverted evidence is that Officer Redwood did, in fact, perform the physical

check. CR at 87.


                                        1
                              ISSUES PRESENTED

      I.     Did plaintiff’s pleading of use of property state a claim for which

             sovereign immunity is waived under the Texas Tort Claims Act?

      II.    Did plaintiff’s pleading of condition of property state a claim for which

             sovereign immunity is waived under the Texas Tort Claims Act?

      III.   Did the trial court err by denying plaintiff’s request to amend her

             petition?

      IV.    Did the trial court err by denying plaintiff an evidentiary hearing on the

             Plea to the Jurisdiction?

      V.     Did the trial court err in dismissing plaintiff’s claim for deprivation of

             rights under the Texas Constitution?

                         SUMMARY OF THE ARGUMENT

      The trial court did not err in granting defendant’s plea to the jurisdiction. To

maintain her suit against TDCJ, Plaintiff must plead a waiver of sovereign immunity

under the Texas Tort Claims Act, CIV. PRAC. & REM. CODE §101.002 et seq

(“TTCA”). Plaintiff’s allegations here are insufficient to establish a waiver as a

matter of law. This case is the result of inmate Middleton choosing to hang himself

in the prison day room. There are no allegations that any employee of TDCJ was

present or using property when the incident occurred. Further, the property utilized

                                          2
by Middleton, the handrail, privacy wall and hoodie, were not inherently dangerous,

nor lacking a safety component. To state a claim for a negligent condition of

property, or implicate a waiver. As a result, Plaintiff has not sufficiently pled a

condition of property to implicate a waiver.

      When a plaintiff’s petition, on its face, does not implicate a waiver, a trial

court need not allow the plaintiff to amend his petition, nor hold an evidentiary

hearing to clarify the pleadings.

      Finally, the Texas Constitution does not waive sovereign immunity for tort

   claims.

                                    ARGUMENT

Reply to Issue I: Plaintiff did not plead sufficient facts to establish a waiver of
                  sovereign immunity based on use of property.
Section 101.021 of the Tex. Tort Claims Act provides that:

A governmental unit in the State is liable for:

  (1) Property damage, personal injury, and death proximately caused by the
      wrongful act or omission or the negligence of an employee acting within
      his scope of employment if:

      (A) The property damage, personal injury, or death arises from the
         operation or use of a motor-driven vehicle or motor-driven
         equipment;

      (B) The employee would be personally liable to the claimant
         according to Texas law; and



                                          3
 (2) Personal injury and death so 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.

      For the TTCA's property waiver to apply, a condition or use of tangible

personal or real property must be involved. Tex. Civ. Prac. & Rem. Code Ann. §

101.021(2). Within section 101.021(2), “use” means “to put or [to] bring into action

or service; to employ for or [to] apply to a given purpose.” Texas Dept. of Criminal

Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001).

      Plaintiff’s Petition does make reference to the use of property. However, the

Texas Supreme Court has held that for a plaintiff to prevail on a use of property

claim, the plaintiff must show that a state employee was negligently using the

property. See Texas A&M University v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005)

and San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245-246 (Tex. 2004). In

Cowan, the patient was involuntarily committed to a state hospital because of his

psychotic behavior, acute depression and suicidal tendencies. The hospital allowed

the patient to keep with him his suspenders and walker. Two days later, the patient

used his suspenders and a piece of pipe from the walker to commit suicide. The

patient’s family sued, alleging that hospital employees misused the suspenders and

walker by providing them to the patient in light of his suicidal state. As here,

plaintiffs argued that the hospital used the property when they “put the suspenders

and walker into service or employed them for a given purpose.” The Court held that


                                          4
sovereign immunity was not waived. “A governmental unit does not ‘use’ personal

property merely by allowing someone else to use it and noting more.” Cowan, 128

S.W.3d at 246, Dallas Cnty. v. Posey, 290 S.W.3d 869, 871 (Tex.2009); University

of Texas M.D. Anderson Cancer Center v. Baker, 401 S.W.3d 246, 253 (Houston –

14th 2012).

      Claims involving the failure to use, or the non-use of property, do not fall

within the TTCA's property waiver. Id. at 587; Texas Natural Resource

Conservation Com'n v. White, 46 S.W.3d 864,869-70 (Tex. 2001); Kerrville State

Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); see also López v. McMillion, 113

S.W.3d 447, 450 (Tex.App.-San Antonio 2003, no pet.) (holding that claim based

on failure to restrain inmate by handcuffing or shackling was allegation of non-use

of property for which TTCA did not waive immunity); Lacy v. Rusk State Hosp., 31

S.W.3d 625, 630 (Tex. App.-Tyler 2000, no pet.) (holding that failure to lock door,

through which patient escaped and later drowned, was non-use of property, for

which TTCA did not waive immunity).

      In Lopez, plaintiffs alleged that a dangerous inmate escaped from the county

jail and terrorized them. They claimed that the county negligently used tangible

personal property when it failed to handcuff the inmate, allowing the inmate to use

the bathroom door to facilitate his escape, and failing to supervise the inmate. López

v. McMillion, 113 S.W.3d at 450-452; see also City of Sugarland v. Ballard, 174


                                          5
S.W.3d 259, 267-68, (Tex. App.-Houston (1st Dist.) 2005). The Lopez facts are

almost identical to the case here where plaintiff pled TDCJ was negligent by failing

to restrain the inmate, allowing him to use the privacy wall to hide and the handrail

to hang, and failing to supervise the inmate. The Lopez court held that only a non-

use of property was alleged and immunity was not waived.

      Here, plaintiffs allege that TDCJ negligently used property by “allowing an

‘inmate with a history of hanging in the dayroom’ to remain unsupervised in the

dayroom behind a privacy wall that was too high to allow for appropriate

supervision, with a state issued hoodie with a drawstring cord, and a handicap rail

that lacked a safety mechanism.” Plaintiff’s brief at page 17. Plaintiffs also allege

that employees failed to monitor, failed to timely discover him unconscious, and

failed to timely release him and render aid. These are all “failure to use property”

claims.

      Allegations of this type are insufficient to waive sovereign immunity. In

Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587-589 (Tex.

2001), the Court found in relevant part that:

             Mere reference to the Tort Claims Act does not establish the
      State’s consent to be sued, and thus is not enough to confer jurisdiction
      on the trial court. The Tort Claims Act provides a limited waiver of
      sovereign immunity allowing suits to be brought against governmental
      units only in certain, narrowly defined circumstances . . . The Tort
      Claims Act and our cases have distinguished claim involving the failure
      to use, or the non-use of property, which do not waive sovereign


                                          6
       immunity from claims involving a “condition or use” of tangible
       personal property that caused injury, which do effect a waiver.

       Clearly, allegations of non-use are not effective to establish a waiver of

sovereign immunity. Here, plaintiff does not allege that any employee of TDCJ used

any property that caused or contributed to the incident made the subject matter of

this suit.   The Texas Supreme Court has held that in certain circumstances,

however, immunity is waived for claims in which the plaintiff alleges that injury or

death was caused by the property's lack of an integral safety component. See, e.g.,

Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 169, 171 (Tex. 1989) (where

patient drowned when employees of a mental-health center took him swimming

without providing him with a life preserver, immunity was waived because, given

patient's epilepsy, the life preserver was a necessary safety component of his

swimming attire); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976)

(immunity waived where student athlete's injured knee was reinjured when school

furnished him with a football uniform without a knee brace); Overton Mem'l Hosp.

v. McGuire, 518 S.W.2d 528, 528–29 (Tex. 1975) (per curiam) (immunity waived

where a patient receiving post-operative care was injured in a fall from a hospital

bed on which no safety rails had been installed). Univ. of Texas M.D. Anderson

Cancer Ctr. v. King, 417 S.W.3d 1, 4-5 (Tex. App. 2013). In this case, however, the

allegation of a lack of safety component is inappropriate. Neither a hoodie nor a

privacy wall has, or needs, a safety component. Further, the absence of any un-
                                         7
named safety component is too attenuated from the inmate’s death to be said to have

caused it.

Reply to Issue II: Plaintiff did not plead sufficient facts to establish a waiver of
                   sovereign immunity based on condition of property.


      Plaintiff alleges that sovereign immunity is waived because the inmate tied

himself to the handicap rails in the dayroom bathroom, and the fact that inmate

Middleton used a drawstring from a TDCJ issued jacket. Neither the rail nor the

drawstring was inherently dangerous, and neither was defective. Moreover, the

drawstring and the handicap rail did not proximately cause the inmate’s death. His

action of taking the drawstring off of the jacket and tying it around his neck and to

the handicap rail was the cause of death. In Rusk State Hospital v. Black, 392 S.W.3d

88, 97-98 (Tex. 2012), the Court reaffirmed the well settled principle that “(A)

condition does not proximately cause an injury or death if it does no more than

furnish the means to make an injury or death possible; that is, immunity is waived

only if the condition (1) poses a hazard in the intended and ordinary use of the

property and (2) actually causes an injury or death.” See Dallas County v. Posey,

290 S.W.3d 869, 871-873 (Tex. 2009) and Dallas County Mental Health and Mental

Retardation v. Bossley, 968 S.W.2d 339, 243 (Tex. 1998). Here, the inmate used

neither the rail nor the string for its intended purpose.



                                           8
      Further, neither the handrail nor the string lacked an integral safety

component. Plaintiff cannot establish a waiver because she cannot show that the

drawstring or the railing posed a hazard in the intended and ordinary use of the

property, or that their conditions were a proximate cause of Middleton’s death.

Reply to Issue III:        The trial court did not err by denying Plaintiff’s
                           request to amend her petition or to hold an evidentiary
                           hearing on the jurisdictional facts.

      Plaintiff alleged that the trial court erred by not allowing plaintiff to amend

her petition in response to the Plea to the Jurisdiction. When a plaintiff fails to plead

facts that establish jurisdiction, but the petition does not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

plaintiff should be afforded the opportunity to amend. In deciding a plea to the

jurisdiction, a court may not weigh the claims' merits but must consider only the

plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. Texas

Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Texas

Parks and Wildlife v. Miranda, 133 SW3d 217 (Tex. 2004); Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). When we consider a trial court's order

on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and

look to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993); Peek v. Equipment Serv. Co. of San Antonio, 779

S.W.2d 802, 804–05 (Tex. 1989); Texas Dep't of Corrections v. Herring, 513


                                           9
S.W.2d 6, 9–10 (Tex.1974). On the other hand, if the pleadings affirmatively negate

the existence of jurisdiction, then a plea to the jurisdiction may be granted without

allowing the plaintiff an opportunity to amend. See Peek, 779 S.W.2d at 804–05;

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Texas 2002).

      If a plea to the jurisdiction challenges the existence of jurisdictional facts, the

court may consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do. See Bland,

34 S.W.3d at 555 (confining the evidentiary review to evidence that is relevant to

the jurisdictional issue); Miranda, 133 S.W.3d at 227. When the consideration of a

trial court's subject matter jurisdiction requires the examination of evidence, the trial

court exercises its discretion in deciding whether the jurisdictional determination

should be made at a preliminary hearing or await a fuller development of the case,

mindful that this determination must be made as soon as practicable. Id. at 554. Then,

in a case in which the jurisdictional challenge implicates the merits of the plaintiffs'

cause of action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists. The United States

Supreme Court and all of the federal circuits have authorized federal district courts

to consider evidence in deciding motions to dismiss for lack of subject matter

jurisdiction. See Fed.R.Civ.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, 735 & n. 4,

(1947), overruled by implication on other grounds by Larson v. Domestic & Foreign


                                           10
Commerce Corp., 337 U.S. 682, (1949) (observing that as a general rule, district

courts have authority to inquire “into the facts as they exist” “by affidavits or

otherwise” as well as the pleadings when determining whether the court has subject

matter jurisdiction). If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and

the fact issue will be resolved by the fact finder. However, if the relevant 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. Miranda, 133 S.W.2d at 227.

Neither Bland nor Miranda require the trial court to conduct an evidentiary hearing

to determine the sufficiency of the pleadings.

       In this case, the jurisdictional facts are not in dispute, and the pleadings

affirmatively negate the existence of jurisdiction. Defendant does not deny that the

inmate used a hoodie string tied to a hand rail behind a privacy wall to hang himself.

The only question, therefore, is one of law, whether the pled facts, if taken as true,

constitute a personal injury or death caused by a condition or use of tangible personal

or real property by a state employee. CIV. PRAC. & REM. CODE §101.021. Here,

plaintiff has not pled that any TDCJ employee was present at the suicide, or used

any property to cause the suicide. Plaintiff has only pled that the inmate, who was

no longer on suicide watch, removed a string from his garment, tied it around a




                                            11
handrail, then intentionally hid himself from view so that he could asphyxiate

himself.

       Factually, this case is akin to those in Dallas County Mental Health and

Mental Retardation v. Bossley, 968 S.W.2d 339 (Texas 1998). In that case, Bossley

was involuntarily committed to an MHMR treatment facility. Because he threatened

suicide, Bossley was ordered to be transferred to a more restrictive environment.

Before he could be transferred, Bossley managed to escape through an unlocked

door, ran onto the freeway, leaped into the path of a truck and was killed. Bossley’s

family sued, claiming both use and condition of property – the unlocked doors. The

Supreme Court held that although Bossley’s escape through the unlocked doors was

part of a sequence of events that ended in his suicide, the use and condition of the

doors were too attenuated from Roger's death to be said to have caused it.

       In our case, it is undisputed that the existence of the string and the handrail

were part of the sequence of events that ended in the inmate’s suicide, but the use

and condition of the string and handrail were too attenuated from the inmate’s death

to be said to have caused it. As a result, the trial court did not err by refusing to allow

plaintiff to amend her petition, or by refusing to hold an evidentiary hearing.

Reply to Issue IV:          The trial court did not err by dismissing plaintiff’s
                            claim for deprivation of rights under the Texas
                            Constitution.
       The Texas Constitution, Article 1, section 13, provides in pertinent part:


                                            12
      All courts shall be open, and every person for an injury done him, in
      his lands, goods, person or reputation, shall have remedy by due
      course of law.

      This provision prohibits the Legislature from unreasonably restricting

common law causes of action. Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.

1995), citing Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 448

(Tex. 1993).

      A litigant challenging a statute as unconstitutionally restricting a common law

cause of action must demonstrate (1) that the statute restricts well-recognized

common law cause of action, and (2) that the restriction is unreasonable when

balanced against the purpose of the statute. Thomas, 895 S.W.2d at 357; Sax v.

Votteler, 648 S.W.2d 661, 666 (Tex. 1983).

      The Texas Tort Claims Act broadened, rather than restricted, an injured

party’s remedies. At common law, sovereign immunity established all suits against

state governmental units and municipalities performing governmental functions

were completely immune from liability. The Tort Claims Act created a limited

waiver of that immunity. Thomas v. Oldham, 895 S.W.2d at 357.

      Recently, in Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011), the

Supreme Court, mentioned the Open Courts doctrine when considering TEX. CIV.

PRAC. & REM. CODE §101.106(F). The court stated:

            As [101.106] affects government-employed physicians, it is
      generally consistent with the Legislature’s concerns regarding health
                                         13
      care costs, also expressed in the bill. We recognize that the Open
      Courts provision of the Texas Constitution “prohibits the Legislature
      from unreasonably abrogating well-established common-law claims”,
      but restrictions on government employee liability have always been
      part of the tradeoff for the Act’s waiver of immunity, expanding the
      government’s own liability for its employees’ conduct, and thus “a
      reasonable exercise of the police power in the interest of the general
      welfare.” In any event, no constitutional challenge is made in this
      case.”

             Franka, 332 S.W.3d at 385.

      The Supreme Court interpreted the Open Courts doctrine in Tex. Workers

Comp. Comm’n v. Garcia, 893 S.W.2d 504 (Tex. 1995), as containing three

constitutional rights:

             (1)    Courts must actually be operating and available;

             (2)    The Legislature cannot impede access to the courts through
                    unreasonable financial barriers; and
             (3)    Meaningful remedies must be afforded, “so that the legislature
                    may not abrogate the right to assert a well-established common
                    law cause of action unless the reason for its action outweighs the
                    litigants’ constitutional right of redress.”
             Garcia, 893 S.W.2d at 521.

      The third prong mention in Garcia, is the “police power” mentioned by the

Franka court.

      When evaluating the constitutionality of a statute, a court must presume that

a statue enacted by the Legislature is constitutional. Tex. Gov’t Code §311.021(1);

Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).


                                          14
Courts have a duty “to construe statutes in a manner that which avoids serious doubt

of their constitutionality”, Federal Savings & Loan v. Glen Ridge I Condo, 750

S.W.2d 757, 759 (Tex. 1988). Not only should a court presume that a duly enacted

law is constitutional, but it should avoid reaching constitutional issues if the matter

can be resolved on another basis. Allen v. Mauro, 733 S.W.2d 228, 230 (Tex. App.-

El Paso 1986, writ ref. n.r.e.). The Legislature is presumed not to have acted

unreasonably or arbitrarily in enacting legislation. Sanchez v. Tex. Dept. of Human

Resources, 581 S.W.2d 260, 266 (Tex. App.-Corpus Christi 1979, no writ).

      The party challenging the constitutionality of a statute bears the “heavy

burden” of showing that statute’s unconstitutionality. Nootsie Ltd., 925 S.W.2d at

663; Barshop v. Medina Cty. Underground Water Conserv. Dist., 925 S.W.2d 618,

623 (Tex. 1996); Tex. Pub. Bldg Authority v. Mattox, 686 S.W.2d 924, 927 (Tex.

1985).

                                  CONCLUSION

      Sovereign immunity has not been waived in this case. On the face of her

petition, Plaintiff has failed to state a claim under the Texas Tort Claims Act.

Plaintiff has failed to plead that an employee of TDCJ negligently used tangible

personal property to proximately cause the death of the inmate. Further, she has

failed to plead that the condition of any personal or real property of TDCJ was



                                          15
defective, or that its condition proximately caused the death of the inmate. As a

result, this case should be dismissed for lack of jurisdiction.

                                      PRAYER

      For these reasons, the Texas Department of Criminal Justice asks this court to

affirm the decision of the trial court, and dismiss this case with prejudice.

                                        Respectfully submitted,


                                        KEN PAXTON
                                        Attorney General of Texas

                                        CHARLES E. ROY
                                        First Assistant Attorney General

                                        JAMES E. DAVIS
                                        Deputy Attorney General for Civil
                                        Litigation

                                        KAREN D. MATLOCK
                                        Assistant Attorney General
                                        Chief, Law Enforcement Defense Division

                                        /s/ Kim Coogan
                                        KIM COOGAN
                                        Assistant Attorney General
                                        State Bar No. 00783867
                                        Attorney-in-Charge

                                        Law Enforcement Defense Division
                                        Office of the Attorney General
                                        P. O. Box 12548, Capitol Station
                                        Austin, Texas 78711-2548
                                          16
                                      (512) 463-2080 / fax (512) 936-2109
                                      kim.coogan@texasattorneygeneral.gov



                     NOTICE OF ELECTRONIC FILING


      I, Kim Coogan, Assistant Attorney General of Texas, do hereby certify that I

have electronically submitted for filing, a correct copy of the foregoing Appellee’s

Brief in accordance with the Electronic Case Files System of the First Court of

Appeals, Houston, Texas, on the 1st day of July, 2015.

                                      /s/ Kim Coogan
                                      KIM COOGAN
                                      Assistant Attorney General




                                        17
                          CERTIFICATE OF SERVICE


      I, Kim Coogan, Assistant Attorney General of Texas, do hereby certify that

a correct copy of the foregoing Appellee’s Brief has been served by placing same

in the United States Postal Service, postage prepaid, on this the 1st day of July, 2015

addressed to:

William F Carter
108 E. Wm. J. Bryan Parkway
Bryan, TX 77803

Laurence W. Watts
Melissa Azadeh
Watts & Company Lawyers, Ltd.
P.O. Box 2214
Missouri City, TX 77459
Appellant’s counsel



                                        /s/ Kim Coogan
                                        KIM COOGAN
                                        Assistant Attorney General




                                          18
                      CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R. APP. P.

9.4(E), it has been prepared in a conventional typeface no smaller than 14-point for

text and 12-point for footnotes. This document also complies with the word-count

limitations of TEX. R. APP. P. 9.4(i)(3) because it contains 4,877 words, including

all parts.




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