 Affirmed and Memorandum Opinion filed August 23, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00571-CV

                   LOYD LANDON SORROW, Appellant
                                       V.
   HARRIS COUNTY, HARRIS COUNTY SHERIFF’S DEPARTMENT
  SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, THE
  HARRIS COUNTY SHERIFF DEPARTMENT’S MENTAL HEALTH
    DEPARTMENT, HARRIS COUNTY SHERIFF DEPARTMENT’S
    MEDICAL DIVISION: DR. SEAL, AND THE HARRIS COUNTY
  DISTRICT PROSECUTING ATTORNEY, IN HIS INDIVIDUAL AND
                OFFICIAL CAPACITIES, Appellees

                   On Appeal from the 412th District Court
                          Brazoria County, Texas
                       Trial Court Cause No. 79003-I

                 MEMORANDUM OPINION
      A pro se inmate asserts claims against governmental entities for injuries he
suffered after being released from jail. The governmental entities argued in a
summary-judgment motion that the trial court lacks jurisdiction over the claims
because the governmental entities have not waived sovereign immunity. The trial
court granted summary judgment. Because the appellant has not shown that the
trial court erred in doing so, we affirm.

                I.            FACTUAL AND PROCEDURAL BACKGROUND

      Appellant/plaintiff       Loyd     Landon       Sorrow    filed    suit    against
appellees/defendants Harris County, the “Harris County Sheriff’s Department
Sheriff,” in his individual and official capacities, the “Harris County Sheriff
Department’s         Mental   Health   Department,”    the   “Harris    County   Sheriff
Department’s Medical Division: Dr. Seal,” and the “Harris County District
Prosecuting Attorney,” in his official and individual capacities (hereinafter
collectively the “Harris County Parties”), alleging a variety of tort, statutory, and
constitutional violations stemming from conduct that occurred after Sorrow was
arrested in West Virginia and extradited to Harris County to face criminal charges.
In his petition, Sorrow asserts that during pre-trial detention he received medical
treatment that included anti-psychotics and narcotics. Sorrow claims that he was
given a narcotic just before a court date and that the medication kept him from
understanding the consequences of pleading “guilty” and accepting deferred
adjudication.        According to Sorrow, the Harris County Parties had a duty to
disclose his mental-health history to both the trial judge and Sorrow’s attorney, and
these disclosures would have (1) prevented Sorrow from pleading “guilty,” (2)
required the trial court to conduct a competency hearing, or (3) allowed the trial
judge to order medication for Sorrow.

        Sorrow contends that as a result of his “guilty” plea, he was thrown out of
the jail and forced to spend the night on the street. Sorrow asserts that he was
without his medication and suffered withdrawal symptoms including headaches,
confusion, and sleeplessness. Sorrow explains that he was hungry and thirsty and

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developed blisters from exposure to the sun. Sorrow asserts in his petition that the
Harris County Parties’ conduct constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution, that it
violates Texas Health and Safety Code sections 611.006(a)(4), (a)(7), and (a)(11),
611.006(b), and 614.017, as well as his right to due process of law.1

       The Harris County Parties filed a summary-judgment motion in which they
asserted that (1) the trial court lacked jurisdiction based on sovereign immunity2
and (2) Sorrow’s claims are barred by the doctrine established in Heck v.
Humphrey. See 512 U.S. 477, 486–87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383
(1994). The trial court granted the Harris County Parties’ summary-judgment
motion.

                                 II.    ISSUES AND ANALYSIS

       On appeal, Sorrow challenges the trial court’s summary judgment in nine
issues. In these issues and the argument under them, Sorrow asserts that (1) the
Harris County Parties waived their jurisdictional complaint by first filing a motion
to transfer venue; (2) the Harris County Parties’ sovereign immunity is waived
under Texas Civil Practices and Remedies Code section 101.021(2); (3) the Heck
doctrine does not apply to the claims Sorrow asserts; (4) the trial court abused its
discretion in failing to consider documents under Texas Rule of Evidence 107; (5)
the trial court abused its discretion in dismissing the case without considering
Sorrow’s amended pleading; (6) the trial court erred in failing to file findings of

1
  In his live pleading, Sorrow does not state that he is asserting any claims under Title 42, section
1983 of the United States Code. On appeal, Sorrow does not state that he asserted any such
claims nor does he base any appellate argument on his alleged assertion of any such claims.
2
  For convenience, all references in this opinion to “sovereign immunity” refer to the related
doctrine of governmental immunity, which applies to Harris County and the other governmental
defendants in this case. See Harris County Flood Control Dist. v. Edward A., —S.W.—, —,
2016 WL 3418246, at *4 n.12 (Tex. Jun. 17, 2016).

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fact and conclusions of law; and (7) the trial court abused its discretion in failing to
rule on his special exceptions. On appeal, Sorrow focuses exclusively on the
injuries he suffered after being released from jail.

      When a governmental entity is immune from suit under the doctrine of
sovereign immunity, courts lack subject-matter jurisdiction over the claims against
the governmental entity. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.
2012); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Generally,
for there to be a waiver of immunity from suit, the Legislature must have
waived immunity from suit as to the claim in question by clear and unambiguous
language. See Tex. Gov’t Code Ann. § 311.034 (West, Westlaw through 2015
R.S.) (providing that a statute shall not be construed as a waiver of
sovereign immunity unless the waiver is effected by clear and unambiguous
language); Tooke v. City of Mexia, 197 S.W.3d 325, 332–33 (Tex. 2006). Harris
County, the Harris County Sheriff’s Department, and the Harris County District
Attorney’s Office all generally enjoy sovereign immunity from liability unless
sovereign immunity has been waived. See Sw. Bell Telephone, L.P. v. Harris
County Toll Road Auth., 282 S.W.3d 59, 69–70 (Tex. 2009); Ficke v. Ratliff, No.
03-13-00136-CV, 2014 WL 857212, at *1–2 (Tex. App.—Austin Feb. 27, 2014,
pet. denied) (mem. op.).

      As the claimant, Sorrow bore the burden of pleading facts demonstrating
a waiver of immunity. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554–55 (Tex.
2002); Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876,
879 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Sorrow argues that
sovereign immunity has been waived under Texas Civil Practices and Remedies
Code section 101.021(2). A defendant may seek a dismissal with prejudice on the
ground that the trial court lacks subject-matter jurisdiction over claims against that

                                           4
defendant due to sovereign immunity by filing a plea to the jurisdiction or by filing
a summary-judgment motion. Bland Indep. School Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000). We construe Sorrow’s pleadings liberally in his favor. Tex.
Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

          Section 101.106(a), the Texas Tort Claims Act’s election-of-remedies
provision, requires a party to determine whether an employee acted independently
and is solely liable for the alleged tort, or whether the employee acted within the
scope of the employee’s employment such that the governmental unit is vicariously
liable.     Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014).             If the
governmental unit is vicariously liable for the employee’s actions, because the
actions were taken within the scope of employment, the statue mandates dismissal
of the government employee. See id. When suit is brought against a governmental
employee for conduct within the general scope of the employee’s employment, and
suit could have been brought against the government, the suit “is considered to be
against the employee in the employee’s official capacity only.” See id. (quoting
Texas Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 356 (Tex. 2013)
(internal citations omitted)).

          A. Did the Harris County Parties waive their argument that the trial
             court lacked subject-matter jurisdiction?
          Sorrow asserts that the Harris County Parties waived their sovereign-
immunity argument by failing to assert it in their original answer. The Harris
County Parties filed a motion to change venue before asserting jurisdictional
defects. When a governmental entity is immune from suit under the doctrine of
sovereign immunity, courts lack subject-matter jurisdiction over the claims against
the governmental entity. Rusk State Hosp., 392 S.W.3d at 95. Subject-matter
jurisdiction cannot be waived and may be raised for the first time on appeal. Tex.
Assoc. Bus. v. Tex. Air Control Board, 852 S.W.2d 440, 445 (Tex. 1993). Subject-
                                         5
matter jurisdiction is different than personal jurisdiction. Though a party may
waive its objection to personal jurisdiction and consent to personal jurisdiction, a
party cannot vest the trial court with subject-matter jurisdiction over the claims in a
lawsuit. See In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014); Tex. Assoc. Bus., 852
S.W.2d at 445. The Harris County Parties assert the trial court lacks subject-matter
jurisdiction over the claims against them based on sovereign immunity. Because
subject-matter jurisdiction is essential to the authority of the court to decide the
case, the Harris County Parties did not waive their sovereign-immunity argument
by failing to raise it in their original answer or by raising it after filing a motion to
transfer venue. See Rusk State Hosp., 392 S.W.3d at 100; Tex. Assoc. Bus., 852
S.W.2d at 445.

      B. Does the waiver of sovereign immunity in Texas Civil Practice and
         Remedies Code section 101.021(2) apply?
      Sorrow argues that the trial court has jurisdiction over his claims because the
Harris County Parties’ sovereign immunity is waived under Texas Civil Practices
and Remedies Code section 101.021(2). This statute provides:

      A governmental unit in the state is liable for:
      ...
      (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.
Tex. Civ. Prac. & Rem Code Ann. § 101.021 (West, Westlaw through 2015 R.S.).
We construe Sorrow’s briefing liberally and conclude he is arguing that (1) his
medical records constitute property within the meaning of section 101.021(2); (2)
he suffered an injury due to the Harris County Parties’ failure to disclose his
medical records; and (3) the Harris County Parties’ sovereign immunity is waived
under section 101.021(2) because a private person would be liable for the actions

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taken by the Harris County Parties under Texas Health and Safety Code sections
611.005 and 611.006.3

       Texas Health and Safety Code section 611.005, entitled, “Legal Remedies
for Improper Disclosure or Failure to Disclose,” provides:

       (a) A person aggrieved by the improper disclosure of or failure to
       disclose confidential communications or records in violation of this
       chapter may petition the district court of the county in which the
       person resides for appropriate relief, including injunctive relief. The
       person may petition a district court of Travis County if the person is
       not a resident of this state.
       (b) In a suit contesting the denial of access under Section 611.0045,
       the burden of proving that the denial was proper is on the professional
       who denied the access.
       (c) The aggrieved person also has a civil cause of action for damages.
Tex. Health & Safety Code § 611.005 (West, Westlaw through 2015 R.S.). Texas
Health and Safety Code section 611.006 provides, in relevant part, that “a
professional may disclose confidential information in . . . any criminal
proceeding.” Tex. Health & Safety Code § 611.006(a)(7).

       For section 101.021(2) to waive sovereign immunity, a condition or use of
tangible property must have proximately caused personal injury or death. See
Dallas Cnty Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex. 1998). Property does not cause injury if it does no more than furnish the
condition that makes the injury possible. Id. Sorrow’s complaint under section
611.005 is that the Harris County Parties failed to disclose his medical records and
the failure to disclose the records caused him to suffer injury. Sorrow has asserted
that the Harris County Parties’ failure to use his medical records (the alleged
property) in a particular way caused him injury. Sorrow does not assert that the
3
 Sorrow also asserts that the Harris County Parties’ actions violated Texas Code of Criminal
Procedure articles 16.22 and 46B.

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use of the records, or the records themselves, caused him injury. Thus, Sorrow
does not assert any claims that fall within the waiver of sovereign immunity
contained in section 101.021(2). See Tex. Civ. Prac. & Rem. Code § 101.021(2);
Bossley, 968 S.W.2d at 343 (holding immunity was not waived when injury was
caused by official’s failure to take an action rather than by the condition or use of
the property in question); Univ. of Tex. M.D. Anderson Cancer Center v. Jones,
485 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.] 2016, pet. filed) (noting
that allegations involving misuse of information, without more, are insufficient to
waive immunity).

       C. Does the Heck doctrine apply to the claims?

       Sorrow argues that the Heck doctrine does not apply to pre-trial detention,
deferred sentences, or mental-illness tort claims. See Heck, 512 U.S. at 486–87,
114 S.Ct. at 2372. He explains that he was denied safeguards that led him to suffer
medication withdrawal, blisters, fear, hunger, thirst, and headaches. Sorrow states
that his lawsuit relates to these alleged injuries and he does not challenge his
criminal conviction.4 For the purposes of our analysis, we presume that the Heck
doctrine does not apply to Sorrow’s claims.               Nonetheless, the Harris County
Parties asserted another summary-judgment ground based on sovereign immunity.
To show that the trial court erred in granting summary judgment, Sorrow must
show error as to the sovereign-immunity ground. See Navarro v. Grant Thornton,
LLP, 316 S.W.3d 715, 719–20 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

       D. Did the trial court abuse its discretion by failing to consider
          documents under Texas Rule of Evidence 107?
       Sorrow also asserts that the trial court abused its discretion by granting

4
  Sorrow asserts he has not pled claims challenging his criminal conviction and he has not
challenged the trial court’s judgment to the extent it grants summary judgment on any claims that
challenge Sorrow’s criminal conviction.

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summary judgment without reviewing medical documents and “omitted magistrate
notifications.” At one point under this issue, Sorrow states that he attempted to
obtain these documents through discovery requests and requests for disclosure.
Sorrow explains that he did not receive answers to his discovery requests and
requests for disclosure and asserts that the trial court abused its discretion in
dismissing the lawsuit before Sorrow received answers to his discovery requests
and, in particular, without reviewing answers Sheriff Adrian Garcia would have
provided to Sorrow’s interrogatories. At another point, Sorrow asserts that the trial
court was required to review these documents under Texas Rule of Evidence 107.

      With respect to Sorrow’s complaints that he did not receive answers to his
discovery requests, Sorrow did not take any steps to preserve error in the trial
court. See Mayfield v. Fullhart, 444 S.W.3d 222, 226 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). Texas Rule of Evidence 107, entitled “Rule of Optional
Completeness,” provides:

      If a party introduces part of an act, declaration, conversation, writing,
      or recorded statement, an adverse party may inquire into any other
      part on the same subject. An adverse party may also introduce any
      other act, declaration, conversation, writing, or recorded statement
      that is necessary to explain or allow the trier of fact to fully
      understand the part offered by the opponent. “Writing or recorded
      statement” includes a deposition.
Tex. R. Evid. 107. Sorrow did not attempt to offer any evidence at the summary-
judgment stage, and so the trial court did not exclude any such evidence. See
Wilson v. Snead Site Preparation, Inc., 770 S.W.2d 840, 844 (Tex. App.—Houston
[14th Dist.] 1989, writ denied). To the extent Sorrow challenges the trial court’s
failure to compel discovery, Sorrow did not preserve error in the trial court. See
Mayfield, 444 S.W.3d at 226. Because the trial court did not exclude any evidence
under Rule 107, we have no ruling to review in that regard. See Bren-Tex Tractor

                                         9
Co., Inc. v. Massey-Ferguson, Inc., 97 S.W.3d 155, 161 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (overruling complaint because the trial court did not
make ruling on the issue).

      E. Did the trial court fail to consider Sorrow’s amended pleading?

      Sorrow asserts the trial court abused its discretion because the trial court did
not consider his amended pleading. Sorrow points out that neither the trial court
nor the Harris County Parties responded to his amended pleading, which he alleges
corrects issues in the prior petition relating to subject-matter jurisdiction and
sovereign immunity.

      Sorrow filed his amended pleading after the Harris County Parties filed their
summary-judgment motion and before the trial court granted the motion. The
record gives no indication that the trial court refused leave to file, nor does it
contain a motion to strike the amended pleading. We presume that the trial court
considered Sorrow’s amended pleading.          The Harris County Parties were not
required to file another answer specifically responding to Sorrow’s amended
pleading. In addition, to the extent Sorrow asserted new claims in his amended
pleading,   the    Harris    County     Parties’   sovereign-immunity       summary-
judgment ground was sufficiently broad to encompass these new claims.
Therefore, it was procedurally appropriate for the trial court to grant summary
judgment as to these new claims, even though the Harris County Parties did not
amend their motion to address the new claims. See Wilson v. Korthauer, 21 S.W.3d
573, 579 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

      F. Did the trial court err in failing to file findings of fact and
         conclusions of law?
      Sorrow asserts that the trial court erred in failing to prepare and file findings
of fact and conclusions of law relating to the Harris County Parties’ summary-

                                          10
judgment motion.        Findings of fact have no place in a summary-judgment
proceeding because a trial court cannot render summary judgment if there are any
genuine issues of material fact. See Lilly v. Tex. Dept. of Criminal Justice, 472
S.W.3d 411, 421 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The trial court
did not err in failing to prepare and file findings of fact and conclusions of law
after granting summary judgment. See id.

       G. Did the trial court fail to rule on special exceptions?

       Sorrow asserts the trial court abused its discretion by failing to rule on his
special exceptions.      Sorrow argues the document he filed, entitled “Special
Exceptions” is a good-faith attempt to correct defects in the pleadings. Sorrow
contends that the trial court should have been specific about its reasons for
concluding it lacked jurisdiction and dismissed the case without prejudice so that
Sorrow could cure the flaws in his petition.

       Special exceptions may be used to challenge the sufficiency of a pleading.
Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). When the trial court
sustains special exceptions, it generally must give the pleader an opportunity to
amend the pleading. Id. After the trial court granted summary judgment in favor
of the Harris County Parties, Sorrow filed a document entitled “Special
Exceptions.”5 In the document Sorrow makes legal arguments attacking the trial
court’s judgment granting summary judgment.

       Although styled as special exceptions, Sorrow did not attack the sufficiency
of his own pleadings or the Harris County Parties’ motion; rather, Sorrow
challenged the trial court’s summary judgment.                Accordingly, we construe
Sorrow’s “special exceptions” as a motion for reconsideration, which the trial court
       5
          Sorrow filed this same document before the trial court granted summary judgment and
in its judgment the trial court expressly stated that it considered the document.

                                             11
overruled by operation of law. See Thottumkal v. McDougal, No. 14-03-00807-
CV, 2004 WL 1607649, at *2 (Tex. App.—Houston [14th Dist.] Jul. 20, 2004, pet.
denied) (mem. op.).     Therefore, the trial court did rule on Sorrow’s special
exceptions.

                            III.            CONCLUSION

      Sorrow’s appellate arguments lack merit. Sorrow has not shown that the
trial court erred in granting summary judgment based on the Harris County Parties’
sovereign-immunity summary-judgment ground.              Accordingly, we overrule
Sorrow’s issues and affirm the trial court’s judgment.




                                      /s/     Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise.




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