                           COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00221-CV


City of Watauga                            §     From the 17th District Court

                                           §     of Tarrant County (17-252867-11)
v.
                                           §     November 21, 2012

Russell Gordon                             §     Opinion by Justice Walker



                                     JUDGMENT

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

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

the trial court is affirmed.

       It is further ordered that appellant City of Watauga shall pay all of the costs

of this appeal, for which let execution issue.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Sue Walker
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00221-CV


CITY OF WATAUGA                                                        APPELLANT

                                         V.

RUSSELL GORDON                                                          APPELLEE


                                      ----------

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                                    OPINION

                                      ----------

      Appellee Russell Gordon filed suit against Appellant City of Watauga,

alleging that he suffered personal injuries when two City of Watauga Police

Officers, while arresting him and again while transporting him to jail, negligently

used tangible personal property—handcuffs—to pin his hands behind his back

too tightly.1 The City filed a plea to the jurisdiction, asserting that it was immune



      1
     The facts pleaded by Gordon were as follows: one evening City of
Watauga police pulled him over on suspicion of driving while intoxicated; after

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from suit because the police officers’ conduct fell within the intentional tort

exception to the Texas Tort Claims Act’s (TTCA) waiver of sovereign immunity.

See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011) (excluding from

TTCA’s limited waiver of immunity claims arising out of assault, battery, false

imprisonment, or any other intentional tort). The trial court signed an order

denying the City’s plea to the jurisdiction, and the City perfected this interlocutory

appeal.

      In a single issue, the City contends that the trial court erred by denying its

plea to the jurisdiction. For the reasons set forth below, we will affirm the trial

court’s denial of the City’s plea to the jurisdiction.

      The standard of review of an order granting a plea to the jurisdiction based

on governmental immunity is de novo. Tex. Natural Res. Conservation Comm’n

v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964

Gordon politely refused to perform field sobriety tests, the officers told him that
he would be placed under arrest and handcuffed; Gordon ―consented to the
arrest and allowed the officer to place the cuffs on him without any resistance‖;
Gordon repeatedly informed the officer that the handcuffs were too tight and
were hurting him, but the officer did not check the tightness of the handcuffs.
Gordon pleaded that at the police station, after he had refused to perform any
additional sobriety tests, he was told that he would be handcuffed and taken to
jail. Gordon again consented, and the placement of handcuffs occurred without
incident. Gordon told the officers that the handcuffs were too tight and were
causing him pain. Again, the officers did not check or loosen the handcuffs.
Gordon pleaded a negligence claim, pleading that the officers acted negligently
in their use of tangible personal property, specifically the use of handcuffs, in one
or all of the following ways: by failing to properly use the handcuffs as designed;
by failing to follow proper policies and procedures as to the proper use of
handcuffs; and by applying the handcuffs on him in a manner that was too tight
on his wrists.


                                            3
S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999).               It is the

plaintiff’s burden to allege facts that affirmatively establish the trial court’s subject

matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993). In determining whether the plaintiff has met this burden,

we look to the allegations in the plaintiff’s pleadings, accept them as true, and

construe them in favor of the plaintiff. See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

      However, if a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issues raised, as the trial court is required

to do. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000). In a case in which the jurisdictional challenge implicates the merits of the

plaintiff’s 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. See

Miranda, 133 S.W.3d at 227. 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 factfinder.          Id.   This

standard generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c). Id. at 228.

      Under the doctrine of sovereign immunity, the State is not liable for the

negligence of its employees absent a constitutional or statutory provision for

liability. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).


                                           4
Statutory provisions authorizing imposition of liability on the State for the

negligence of its employees are set forth in section 101.021(2) of the TTCA; that

section expressly waives sovereign immunity for ―personal injury and death so

caused by a condition or use of tangible personal . . . property if the

governmental unit would, were it a private person, be liable to the claimant

according to Texas law.‖ Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West

2011). Section 101.021(2)’s limited waiver of sovereign immunity does not apply,

however, to claims ―arising out of assault, battery, false imprisonment, or any

other intentional tort.‖ Id. § 101.057.

      Here, the City conceded in its brief and during oral argument that the

police officers’ use of handcuffs constitutes the use of tangible personal property

for purposes of section 101.021(2)’s limited waiver of immunity. The City argues,

however, that the evidence it submitted in support of its plea to the jurisdiction

established that the handcuffs were not negligently used but instead were

intentionally used. The City points to the affidavits of the police officers that the

City filed in support of its plea to the jurisdiction and argues that the officers

applied the handcuffs to Gordon exactly as they intended to do and in

accordance with their training, so that ―the actions underlying Plaintiff’s claims

are intentional acts rather than potential acts of negligence.‖ The City asserts




                                          5
that the police officers thus committed intentional torts2 and that the TTCA’s

limited waiver of immunity does not apply to intentional torts. See id.

      Premised on the police officers’ affidavits stating that they had intentionally

applied the handcuffs to Gordon and that the handcuffs were not used ―in any

manner other than exactly how [the officers] intended them to be used and

applied‖ and were applied ―[a]s per training,‖ the City argues that this intent—that

the officers intended their acts as opposed to intended to cause the injuries at

issue—qualifies their conduct in applying the handcuffs as an intentional tort. In

its brief, the City thoroughly analyzes and attempts to delineate and distinguish

between the case law holding, according to the City, that to qualify as an

intentional tort, the state actor must have only intended his act3 and the case law

holding that to qualify as an intentional tort, the state actor must have intended




      2
       For example, the City argues that

            [e]ven though the Petition purports to plead a negligence
      cause of action, the evidence submitted by the Defendant in the trial
      court establishes that the acts complained of (placing the handcuffs,
      double locking them and checking by running a finger between the
      handcuffs and the suspect’s wrist) were purposeful and intentional.
      3
      The City relies on City of Waco v. Williams, 209 S.W.3d 216 (Tex. App.—
Waco 2006, pet. denied); Harris County v. Cabazos, 177 S.W.3d 105 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d
334 (Tex. App.—Dallas 2004, no pet.); and City of Laredo v. Nuno, 94 S.W.3d
786 (Tex. App.—San Antonio 2002, no pet.).


                                         6
the injury he caused.4     The City urges us to resolve this purported split of

authority and argues that only the former intent is required.

      We need not decide in this case whether a police officer must have

intended only his act or must have intended the injury he caused for a tort that he

commits to fall within section 101.057’s intentional tort exception to section

101.021(2)’s limited waiver of immunity. Gordon pleaded facts supporting his

claim that the police officers’ negligent use of tangible personal property caused

his injuries; he did not plead facts that would support an intentional tort. Gordon

specifically pleaded that, both when he was arrested and when he was

transported from the police station to the jail, he consented to the application of

handcuffs and did not resist their application. Thus, under Gordon’s pleadings,

the officers’ application of the handcuffs did not involve an offensive touching or

contact of Gordon by the officers as required to constitute the intentional tort of

assault or battery.    See Tex. Penal Code Ann. § 22.01(a)(3) (West 2011)

(assault); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967)

(battery). Because Gordon did not plead facts showing that the police officers

committed an assault, battery, false imprisonment, sexual assault, wrongful

death or injury via excessive force, or other intentional tort, this case is

distinguishable from the cases relied upon by the City. See Tex. Dep’t of Pub.

Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding that plaintiff had

      4
      The City identifies this line of cases as the Reed Tool line of cases. See
Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985).


                                         7
pleaded intentional tort by pleading assault and battery claim against officer so

that claims against State predicated on officer’s conduct fell within intentional tort

exclusion from TTCA’s limited waiver of immunity); City of Fort Worth v. Chattha,

No. 02-11-00342-CV, 2012 WL 503223, at *6 (Tex. App.—Fort Worth Feb. 16,

2012, no pet.) (mem. op.) (holding that plaintiff had pleaded intentional tort of

battery by pleading that officer performed a ―take-down‖ maneuver to force

plaintiff to the ground); City of Waco, 209 S.W.3d at 220–24 (holding that

plaintiff’s pleading—that arresting officers utilized excessive deadly force in

decedent’s arrest by repeatedly Tasering decedent as he lay helpless on the

ground—pleaded an intentional tort); Harris Cnty., 177 S.W.3d at 112 (holding

that plaintiff’s pleading—that police officer approached vehicle with gun drawn,

―walked directly to the driver’s side door of the vehicle occupied by the Plaintiff

and shot the Plaintiff in the neck‖—pleaded an intentional tort); City of Garland,

146 S.W.3d at 337–38 (holding that plaintiff’s pleading—that police used

excessive and deadly force to arrest decedent that included the use of pepper

spray, handcuffs, a K-9 police service dog, and other departmentally issued—

properly constituted claim for intentional tort); City of Laredo, 94 S.W.3d at 789

(holding that plaintiff had pleaded intentional tort of excessive force and assault

by pleading that officer banged her vehicle with his hand, dragged her from the

vehicle, threw her against the side, hit her in the back with his handcuffs, kicked

her on the legs, hit her face against the car, grabbed her breasts, rubbed his

private part against her behind, and reapplied handcuffs to her wrist and leg).


                                          8
      Likewise, the particular police officers’ affidavits filed by the City in this

case—which indicate that they intentionally applied the handcuffs to Gordon

―exactly as they intended to do‖ and in ―accordance with their training,‖ do not

plead facts indicating that Gordon’s negligent-use-of-personal-property claim is

actually an intentional tort claim. Each officer stated in his affidavit, in pertinent

part, that Gordon was handcuffed with his hands behind his back using ASP

brand handcuffs and

      [a]s per training, I checked the handcuffs to insure they were double
      locked . . . and not too tight. I check for over tightness by running a
      finger between the handcuffs and the suspect’s wrists. . . . The
      checks for double locking and tightness are checks which were
      taught to me in the basic police academy at the beginning of my law
      enforcement career and are procedures which I follow every time a
      prisoner is handcuffed.

             ....

             I applied the handcuffs in the manner described and
      conducted the double-lock check and fitness check with my finger
      intentionally. At no time were the handcuffs which were applied to
      Mr. Gordon used in any manner other than exactly how I intended
      them to be used and applied.

      These affidavits state no jurisdictional facts establishing an intentional tort;

no facts are stated indicating that the police officers committed assault, battery,

false imprisonment, sexual assault, wrongful death or injury via excessive force,

or other intentional tort. Accord Tex. Penal Code Ann. § 22.01(a)(1), (2), (3)

(elements of assault), § 22.011 (West 2011) (elements of sexual assault); Fisher,

424 S.W.2d at 629–30 (elements of battery); Sears, Roebuck & Co. v. Castillo,

693 S.W.2d 374, 375–76 (Tex. 1985) (elements of false imprisonment); City of


                                          9
Laredo, 94 S.W.3d at 789 (explaining that use of excessive force to arrest

someone is ―intentional tortious act‖). Instead, the officers’ affidavits state that

they properly applied the handcuffs to Gordon, just as they intended to, in

accordance with their training. Thus, to the extent the police officers’ affidavits

constituted jurisdictional evidence, that evidence implicated the merits of

Gordon’s claim (whether or not the handcuffs were properly or negligently

applied) and, at the very most, raised a fact issue on whether the officers

negligently applied the handcuffs to Gordon. See Miranda, 133 S.W.3d at 227.

To hold otherwise would completely eviscerate the limited waiver of immunity set

forth in section 101.021; virtually every time a state actor allegedly negligently

used tangible personal property, section 101.021’s specific, limited waiver of

immunity for this type of conduct could be defeated based solely on an affidavit

by the state actor alleging that he or she in fact intentionally intended to use the

tangible personal property and intentionally intended to use it in the manner that

he or she used it. Accordingly, because the jurisdictional evidence presented by

the City—consisting of only the two affidavits by the police officers who

handcuffed Gordon—implicated the merits of Gordon’s negligent-use-of-tangible-

personal-property claim and, at most, established a fact issue on whether the

officers negligently applied the handcuffs to Gordon, the trial court properly

denied the City’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 277.

      We overrule the City’s sole issue, and we affirm the trial court’s denial of

the City’s plea to the jurisdiction on Gordon’s claim for personal injuries based on


                                        10
the police officers’ allegedly negligent use of tangible personal property—the

handcuffs.


                                               SUE WALKER
                                               JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: November 21, 2012




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