                                           NO. 07-03-0232-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL E

                                      FEBRUARY 11, 2004
                                ______________________________

                                            RICKY STARKS,

                                                                    Appellant

                                                      v.

                        TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                      Appellee
                             _________________________________

                FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 89,630-D; HON. DON EMERSON, PRESIDING
                            _______________________________

                                     Memorandum Opinion
                               _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Ricky Starks (Starks) appeals from a final judgment wherein the trial court granted

the plea to the jurisdiction of the court filed by the Texas Department of Criminal Justice

(TDCJ). The latter argued that the suit should be dismissed due to the want of jurisdiction.

Furthermore, jurisdiction was non-existent because Starks could not “show that his injury

was caused by a use of property under the Texas Tort Claims Act.” Starks attacks the trial


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
court’s judgment via six issues. Through each, he attempts to illustrate that he actually

alleged a claim within the scope of the Tort Claims Act. We reverse the judgment.

       Authority

       It is beyond dispute that state governmental agencies enjoy sovereign immunity from

suit. Nevertheless, our legislature has said that they could be held liable for damage,

injury, or death caused by a condition or use of tangible personalty “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(1)(A) & (2); Rule v. City of Lubbock, 68 S.W.3d

853, 857 (Tex. App.–Amarillo 2002, no pet).           Thus, to avoid their immunity, the

complainant, through his pleadings, must allege facts illustrating a viable cause of action

involving damage, injury or death caused by a condition or use of tangible personalty. Rule

v. City of Lubbock, 68 S.W.3d at 857. In other words, for one to enjoy the window opened

by the Tort Claims Act, they must plead facts which, if accepted as true, satisfy the

elements of the Tort Claims Act. Id.

       We caution, however, that the trial court is not to assess the merits of the underlying

cause of action when determining if the pleadings meet the requisite standard. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Rule v. City of Lubbock, 68

S.W.3d at 857. That is, it must not require the complainant to prove the merits of his

underlying cause of action. Instead, the petition is normally viewed as the source of the

information used to assess jurisdiction, though extraneous evidence may be received by

the court depending upon the nature of the jurisdictional attack. Id.; see Texas Dept. Crim.

Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (stating that “we must examine the



                                              2
plaintiff’s pleadings to decide whether sovereign immunity has been waived” but also

consider the evidence presented).2

         Next, for purposes of the Tort Claims Act, the word “use” means “‘to put or bring into

action or service; to employ for or apply to a given purpose.’” Texas Dept. Crim. Justice

v. Miller, 51 S.W.3d at 588. And, it is this element of the Tort Claims Act which Starks

failed to satisfy given the allegations in his live petition, according to the TDCJ. Thus, to

see if it is correct, we must not only read the petition but also do so in a liberal manner

since Starks represents himself. See Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex.

App.–Beaumont 2002, pet. denied) (stating that the pleadings of a pro se litigant are to be

liberally construed); Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex. App.–Houston [1st

Dist.] 1989, no writ) (stating that the “Supreme Court directs us to seek the substance of

a pro se complaint by reviewing pro se applications with liberality and patience”).

         Application of Authority

         Starks sued the TDCJ for compensation due to a skin infection he developed while

incarcerated. He alleged, among other things, the following in his live petition:

         . . . From [August 13, 2001] until nearly the third of [S]eptember was a three
         week period of time in which plaintiff had to retain possession of his sheets
         with no opportunity to exchange them for clean ones. Throught [sic] that time
         the security detention inmates were shaken down[,] and plaintiff’s sheets
         were spread across the dirty concrete floor. This occurred on the 27th of
         August. This was the further contamination of the sheets where plaintiff still


         2
          To the extent the TDCJ suggests that jurisdiction was wanting since Starks could not prove
causation, it is inviting the court to do that cautioned against in Bland. Contending, via a motion to dismiss
or a ple a to the jurisdiction of the court, that the suit should be dismissed for want of jurisdiction because
Starks cannot prove an elem ent of his claim, i.e. causation, differs from contending that it should be dismissed
since he failed to allege a cause of action within the sc ope of the T ort Claims Ac t. The form er invites the co urt
to assess the m erits of the case, contrary to the directive in Bland, while the latter do es no t. The latter,
instead, simply requires peru sal of the plea dings to se e w hat wa s alle ged and wh ether those allegations fit
within the A ct.

                                                          3
        had to sleep on the sheets. During the shakedown all cleaning supplies were
        taken from the inmates . . . . So, here is a situation where plaintiff could not
        even wash the sheets that he did have. Therefore, plaintiff was required to
        sleep on the dirty sheets after they had been spread across the floor, when
        sheets were to be issued on that same Monday. Sheets were not given to
        any of the security detention inmates. Plaintiff then contracted an infection
        that worsened so fast that it had [spread] over the entire right side of his back
        and ultimately over the whole back area. Said infection increased to the
        stage of sores which bled over the sheets plaintiff was forced to continue to
        sleep on . . . .

        Reading Starks’ allegations with the “liberality and patience” contemplated in

Johnson v. McAdams, we see that he complains of several things. One involves an

omission on the part of his jailers, that omission being their failure to provide him with clean

sheets for several weeks. The other encompasses their act of spreading his sheets on a

dirty concrete floor part, which resulted in their further contamination, and then requiring

that he sleep on them.3 The former may not be actionable since it entails allegations of

injury arising from the non-use of personalty, i.e. the failure to provide clean sheets. See

Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994) (stating that the non-use of property, such

as available drugs during emergency medical treatment, does not result in the waiver of

sovereign immunity). Yet, the same cannot be said of the latter. In contaminating the

sheets by spreading them across a dirty floor and then returning the soiled items for him

to sleep on, it can be said that the TDCJ employees “put or [brought] into action or service”

or “employ[ed] . . . or appl[ied] to a given purpose” the sheets that purportedly caused

Starks’ infection. Whether the allegations are true or whether Starks’ injuries were caused

by whatever filth, if any, attached to the sheets after being placed on the floor is irrelevant


        3
          Though no evidence was offere d at the hea ring on TD CJ’s plea , Stark s argued that the “dirty
concrete floor . . . has spit on it, food particles on it, coffee spills on it, and sewage backup on it where they
imp rope rly mo p them . . . .”

                                                        4
to our inquiry. Those matters implicate the merits of his claim, not whether he alleged a

cause of action within the scope of the Texas Tort Claims Act.

       Given our obligation to construe his petition liberally, we conclude that Starks’

alleged facts illustrate that his injury arose due to a condition or use of tangible personalty.

And, because they did, the trial court erred in concluding otherwise and, thereby, entering

judgment denying him recovery. Accordingly, the judgment is reversed, and the cause is

remanded to the trial court.



                                                   Brian Quinn
                                                      Justice




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