                           NUMBER 13-10-00679-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

ERNEST DAYNE, INDIVIDUALLY AND
AS FATHER AND NEXT FRIEND OF
M.F.R.D., A MINOR FEMALE CHILD,                                          Appellant,

                                          v.

TEXAS DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES,                                                 Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez

      Appellant Ernest Dayne, individually and as father and next friend of M.F.R.D., a

minor female child, filed this appeal from the trial court's order granting a plea and

supplemental plea to the jurisdiction and motion to sever in favor of appellee Texas
Department of Family and Protective Services (DFPS).1 By two issues, Dayne contends

that the trial court erred in granting the DFPS's plea to the jurisdiction and in severing his

claims against DFPS into another cause. We affirm.

                                         I. BACKGROUND2

        On appeal, Dayne alleges the following facts:

        1. In 2007, after M.F.R.D. was removed from her home because her parents had

drug-use issues and then was removed from her great-grandmother's home, CPS placed

her in an emergency facility. M.F.R.D. ran away from this facility and was apprehended

with marijuana in her possession;

        2. On March 26, 2010, when CPS again took possession of M.F.R.D., she was

placed at Shoreline, Inc. (Shoreline or Shoreline Property), a private corporation licensed

by DFPS;

        3. Xavier Arrisola, who was on probation at the time, and Juan Silvas Suarez

were employees of Shoreline during M.F.R.D.'s residency there. Robert Evans was also

employed by Shoreline during part of that time;

        4. Arrisola and Evans were often alone with M.F.R.D. and fondled her on multiple

occasions. M.F.R.D. began to like the attention and apparently did not report these

activities;
        1
          Dayne filed suit against Shoreline, Inc., a Texas Corporation, the Texas Department of Family
Protective Services (DFPS), Audrey Deckinga, Assistant Commissioner of Child Protective Services of the
DFPS, in her personal and individual capacity, Sasha Rasco, Assistant Commissioner for Child Care
Licensing of the DFPS, in her personal and individual capacity, Xavier Arrisola, Robert Evans, and Juan
Silvas Suarez. It is undisputed that Shoreline is a private entity regulated by the DFPS. The trial court
granted DFPS's plea to the jurisdiction and severed Dayne's claims against DFPS from his claims against
the remaining defendants. Dayne brings this appeal from the severed action.
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
       5. Suarez sexually assaulted another female ward at Shoreline. She was a

friend of M.F.R.D.;

       6. In August 2010, Suarez told M.F.R.D. that he would help M.F.R.D. and her

friend escape so that M.F.R.D. could be reunited with her father and so that she and her

friend could meet with Suarez and Arrisola;

       7. Suarez gave a magnetic door security code to M.F.R.D. and two other wards at

Shoreline;

       8.    On September 1, 2010, the girls went through a metal door which was

unlocked and opened by an unknown female employee of Shoreline. M.F.R.D. then

entered the security code to the magnetic door, and three wards left the building. The

third ward changed her mind and returned to Shoreline;

       9. M.F.R.D. and the other female ward spent the night with a friend, and on

September 3, 2010, they called Arrisola and Suarez. The men picked up the girls and

took them to a motel to spend the night. The men provided the girls with alcohol and

cocaine and engaged in sexual intercourse with them;

       10. The girls returned to their friend's house. The men continued to contact

them by phone until the ward who had left Shoreline with M.F.R.D. was reunited with her

parents on September 7, 2010; and

       11. Later, M.F.R.D. contacted her father and her attorney indicating that she was

safe, did not want to return to Shoreline, and believed that Arrisola might do something to

her and her father in retaliation for this lawsuit.

       Dayne sued DFPS for claims under the Texas Tort Claims Act (TTCA), specifically

under section 101.021(2).        See id. § 101.021(2) (West 2011) (generally waiving

                                               3
sovereign immunity for injuries caused by a "condition" or "use" of property). Dayne's

original petition alleged negligence and gross negligence against DFPS and asserted the

following "areas of breach of duty":

       (a)     DFPS['S] failure to exercise ordinary care in ensuring that
       SHORELINE provide a professional staff that would ensure the safety and
       well[-]being of its residents, including [M.F.R.D.];

       (b) DFPS['S] failure to investigate properly and/or the failure to take
       appropriate remedial measures following previous reports of improprieties
       at SHORELINE and following previous reports of improprieties involving
       members of SHORELINE'S staff; [and]

       (c) DFPS['S] failure to protect [M.F.R.D.] from abuse and exploitation in
       contravention of its Mission, which is to protect children from abuse and
       exploitation.

Dayne also alleged that,

              DFPS was negligent per se in that it breached, or failed to follow, its
       statutory and regulatory duties, including those set forth in Section 42 of the
       [Texas] Human Resources Code and in the Texas Administrative Code, to
       ensure the safety and well[-]being of the Children in its custody, including
       [M.F.R.D.], who were placed at Shoreline.

       In his second supplemental petition, Dayne developed his claims against DFPS,

alleging that,

              DFPS was negligent and grossly negligent within the reach of the
       [TTCA], and waived its immunity from such liability, since its negligence and
       gross negligence toward Plaintiffs resulted in personal injury to them
       "caused by a condition or use of . . . real property" where DFPS "would,
       were it a private person, be liable to the claimant according to Texas law"
       [§ 101.021(2)].

As to the "condition" and "use" element of section 101.021(2), Dayne expressly asserted

that during M.F.R.D.'s stay at Shoreline, the condition and the use of Shoreline's property

as a site for the placement, care, safe well-being, and treatment of minor wards was

"unsafe and dangerous sexually and morally" and therefore defective "because

                                             4
[Shoreline] was staffed, in part, by ARRISOLA, EVANS and SUAREZ," who sexually

exploited the wards, including M.F.R.D. See id. In addition, Dayne continued to claim

that DFPS, which shall "provide protective services for children," see TEX. HUM. RES.

CODE ANN. § 40.002(b)(1) (West Supp. 2010), was negligent in the exercise of its

regulatory control relative to Shoreline.3

        DFPS filed a plea to the jurisdiction and a supplemental plea asserting that Dayne

did not allege a waiver of sovereign immunity under the TTCA as a matter of law. After

hearing arguments by counsel, the trial court granted DFPS's plea to the jurisdiction and

its motion to sever. This appeal followed.

                                     II. PLEA TO THE JURISDICTION

A. Standard of Review

        A plea to the jurisdiction seeks dismissal of a case based on a lack of

subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

Sovereign immunity raises questions of subject-matter jurisdiction and is properly

questioned in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 225-26 (Tex. 2004). "Whether a pleader has alleged facts that affirmatively

demonstrate a trial court's subject-matter jurisdiction is a question of law reviewed de

        3
           See, e.g., TEX. HUMAN RES. CODE ANN. § 42.042(a), (c), & (e) (West Supp. 2010) (explaining that
the DFPS "shall make rules to carry out the provisions of this chapter," "shall provide a standard procedure
for receiving and recording complaints," and "shall promulgate minimum standards that apply to licensed
child-care facilities"); id. § 42.044 (West Supp. 2010) (allowing for DFPS's inspection of a facility regulated
under this chapter); id. §§ 42.046, 42.048 (West Supp. 2010) (setting out the application process for a
license to operate a child-care facility); id. § 42.056 (West Supp. 2010) (explaining that DFPS shall conduct
background and criminal history checks on those persons, including facility employees, whose names are
provided by the facility upon its application for a license and once every two years after the facility receives
the license) (West Supp. 2010); see also, e.g., 40 TEX. ADMIN. CODE § 745.21 (2010) (defining, in relevant
part, "Minimum standards" under Title 40 as rules contained in chapter "748 of this title relating to General
Residential Operations and Residential Treatment Centers"); id. §§ 748.1-748.4473 (2010) (setting out
rules that apply to residential treatment centers through the permit holder, including developing, among
other things, written personnel policies that ensure compliance with minimum employee qualifications).
                                                       5
novo." Id. at 226. We construe the pleadings liberally and look to the pleader's intent.

Id. However, when suing a governmental entity,

        [t]he [TTCA] provides a limited waiver of sovereign immunity, allowing suits
        to be brought against governmental units only in certain, narrowly defined
        circumstances. See Dallas County Mental Health & Mental Retardation v.
        Bossley, 968 S.W.2d 339, 341 (Tex. 1998) ("the Legislature intended the
        waiver in the [TTCA] to be limited"). Therefore, "we must look to the terms
        of the [TTCA] to determine the scope of its waiver," Kerrville State Hosp. v.
        Clark, 923 S.W.2d 582, 584 (Tex. 1996), and then must consider the
        particular facts of the case before us to determine whether it comes within
        that scope.

State Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

B. Applicable Law

        Section 101.021 waives governmental immunity (1) when personal injury is

proximately caused by the negligence of an employee acting within his scope of

employment if the personal injury arises from the operation or use of a motor-driven

vehicle or equipment or (2) when personal injury is "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." 4 TEX. CIV. PRAC. & REM. CODE ANN. §

101.021; see Tex. Dep't of Family & Protective Servs. v. Atwood, 176 S.W.3d 522, 527

(Tex. App.—Houston [1st Dist.] 2004, pet. denied). Section 101.022(a) sets out the duty

owed when governmental immunity is waived because of a premise defect. TEX. CIV.

PRAC. & REM. CODE ANN. § 101.022; see Atwood, 176 S.W.3d at 527.

C. Analysis

        4
         It is undisputed that DFPS is a "governmental unit" as defined by the TTCA. See TEX. CIV. PRAC.
& REM. CODE ANN. ' 101.001(3)(A) (West 2001) (defining "governmental unit" as "this state and all of the
several agencies of government that collectively constitute the government of this state, including other
agencies bearing different designations, and all departments, bureaus, boards, commissions, offices
agencies, [and] councils"); Tex. Dep't of Family & Protective Servs. v. Atwood, 176 S.W.3d 522, 527 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied).
                                                   6
       1. Condition or Use of Real Property

       In this case, Dayne's underlying claims are not based on the use of a motor-driven

vehicle by a DFPS employee or on the use of tangible personal property. See id.

§ 101.021(1)-(2).    In addition, Dayne does not claim a premise defect.                See id.

§ 101.022.    Therefore, this Court will consider only whether Dayne's pleadings are

sufficient to maintain a claim for injury arising out of a "condition" or "use" of real property.

See id. § 101.021(2); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2001).

       To establish waiver under section 101.021(2), Dayne must have pleaded facts that

show a condition or use of real property by DFPS that resulted in personal injury to

M.F.R.D. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). The term "use," in this

context, is defined as "to put or bring into action or service; to employ for or apply to a

given purpose." See San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.

2004). The term "condition" has been judicially defined as "either an intentional or an

inadvertent state of being" and as "a particular mode or state of being of a thing." Webb

County v. Sandoval, 88 S.W.3d 290, 294 (Tex. App.—San Antonio 2002, no pet.).

       In his petition, Dayne identified the real property as the "Shoreline Property" or

"Shoreline." Dayne also described the condition or use of the Shoreline Property that

allegedly resulted in personal injury to M.F.R.D as follows:

       The use [or condition] of [the Shoreline Property] as a site for the
       placement, care, safe well being and treatment of minor Wards of the State
       made such Property defective factually for the placement, care, safe well
       being and treatment of minor Wards of the State because it was staffed, in
       part, by ARRISOLA, EVANS and SUAREZ who, by their sexual exploitation
       of minor Wards of the State . . . made such Property unsafe and dangerous
       sexually and morally to minor female Wards placed there by DFPS and
       contradicted the very purpose of such Property as held out by SHORELINE
       to DFPS.
                                             7
       On appeal, Dayne argues that there is nothing in section 101.021(2) "to preclude

the application of such words [as condition or use] to defects or dangers arising from an

operational defect involving real property, i.e. Atwood, 176 S.W.3d at 527, the way such

property is operated or used which makes it unsafe or defective for its intended or

ordinary use." Dayne contends that section 101.021(2) "is broad enough to encompass

the nature and scope of the negligence lawsuit for damages pleaded against the DFPS

where the injuries allegedly sustained by Appellants were proximately caused by an

unsafe and dangerous sexually and morally [sic] condition, use and/or condition and use

of the Affected Property."     Dayne continues, rephrasing his appellate argument as

follows:

              The "condition" or "use" of the Affected Property . . . was unsafe and
       dangerous sexually and morally to [the Wards of the State] because it was
       staffed, in part, by Defendants Arrisola, Evans and Suarez "who, by their
       sexual exploitation of minor Wards of the State there * * * made such
       Property unsafe and dangerous sexually and morally to the Wards placed
       there by DFPS * * *

       Dayne cites no legal authority in support of his proposition that these facts are

sufficient to maintain a claim for injury arising out of a condition or use of real property by

DFPS, and we have found none. Nonetheless, referring to repealed article 6252-19,

section 13 of the Texas Revised Civil Statutes, Dayne urges this Court to adopt his

reasoning by broadly and liberally construing section 101.021(2) as courts did under the

prior statute. See TEX. REV. CIV. STAT. ANN. art. 6252-19, § 13 (Vernon 1970) (repealed)

(providing that the act "shall be liberally construed to achieve the purposes hereof"). We

decline to do so.

       Considering Dayne's petition and construing it in his favor, as we must, see Brown,
                                           8
80 S.W.3d at 555, the only asserted condition or use of the Shoreline Property that Dayne

claims caused M.F.R.D.'s injury involves the presence and actions of three Shoreline

employees. Dayne's asserted "unsafe use" does not involve putting or bringing the

Shoreline Property, itself, into action or service. See Cowan, 128 S.W.3d at 246. The

facts of this case do not support a "use" of the Shoreline Property that employs the real

property, itself, for a purpose or applies it to a given purpose. See id. Furthermore, the

facts that Dayne contends support a "defective condition" or an "operational defect" of the

real property do not involve Shoreline Property's particular mode or state of being. See

Sandoval, 88 S.W.3d at 294. Dayne's fundamental premise is flawed.

       In this case, Dayne complains about the alleged actions of Shoreline's employees,

not the condition or use of the real property itself. All allegations focus on the alleged

intentional acts of Shoreline's employees. The specific conduct is the same conduct that

forms the basis of his claims against Arrisola, Evans, and Suarez.           The specific

conduct—assault and battery or sexual assault—is clearly intentional.             And all

intentional torts against DFPS are barred by sovereign immunity as a matter of law. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 2011) (providing that the TTCA

specifically excludes waiver for a claim "arising out of assault, battery, false

imprisonment, or any other intentional tort").    Therefore, the allegations fit squarely

within section 101.057's waiver exclusion. See id.

       In addition, there must be a nexus between the condition of the property and the

injury in order to find proximate cause, and this nexus requires more than mere

involvement of property—rather, the condition must actually have caused the injury. See

Bossley, 968 S.W.2d at 343 ("Section 101.021(2) requires that for immunity to be waived,
                                          9
personal injury or death must be proximately caused by the condition or use of tangible

property."); cf. Campos v. Nueces County, 162 S.W.3d 779, 782 (Tex. App.—Corpus

Christi 2005, pet. denied) (concluding in a premises-defect case where the plaintiff

complained of non-functioning or improperly functioning equipment and areas which

permitted guards to have unlimited, unmonitored access to inmates, that the mere

intermingling of intentional torts with the negligence of a governmental unit does not

render the governmental unit immune). Here, Dayne complains only of the involvement

of the property, not of a condition of the property that proximately caused the injury.

       Looking at the substance of the pleadings, we conclude that Dayne's complaints

are not about the use or condition of the Shoreline Property. His complaints are not

about defective premises or about the condition or use of tangible equipment owned by

Shoreline.   Instead, Dayne's complaints are about the alleged intentional torts by

Shoreline's employees. Therefore, this argument fails.

       2. Control

       By his first issue, Dayne also contends that DFPS was negligent in the exercise of

its licensing authority and its regulatory control over the operations of Shoreline Property

and that DFPS's immunity has been waived by this resulting unsafe and dangerous

condition. Dayne argues that DFPS's connection to Shoreline and its property "stems

from its licensing and substantial regulatory control over Shoreline, especially as to

investigations, inspections[,] and Shoreline staffing, and constitutes a right to control

nexus over Shoreline sufficient to come within the liability reach of TTCA § 101.021(2)."

See generally, TEX. HUM. RES. CODE ANN. §§ 42.001-.078 (West Supp. 2010) (providing

for the regulation of certain facilities, homes, and agencies that provide child-care
                                            10
services); 40 TEX. ADMIN. CODE §§ 748.1-748.4473 (2010) (setting out rules that relate to

general residential operations and residential treatment centers).

       We are not persuaded by this argument because, even assuming Dayne's claims

involved an injury proximately caused by a use or condition of real property, DFPS had no

legal right to control Shoreline even if it regulated Shoreline. See TEX. HUM. RES. CODE

ANN. § 42.042(a), (e) (West Supp. 2010) (explaining that the DFPS shall make rules to

carry out the provisions of chapter 42 (Regulation of Certain Facilities, Homes, and

Agencies that Provide Child-Care Services) and promulgate minimum standards that

apply to licensed child-care facilities); see also Atwood, 176 S.W.3d at 530 (assuming

that the Atwoods' claims involved injury and death proximately caused by a use of

defective or nondefective tangible personal property, the court found that DPFS retained

immunity because it did not have the legal right to control the foster home). In this case,

even if DFPS discovered that Shoreline, through its employees, had been violating the

DFPS's minimum standards in a manner that posed a risk to the health and safety of the

children, it would not have had the authority to force Shoreline to comply; rather, its only

recourse would have been to revoke Shoreline's license. See Atwood, 176 S.W.3d at

530; see also TEX. HUM. RES. CODE ANN. § 42.073 (West Supp. 2010) (providing for relief

in the form of emergency suspension and closure of the facility for violation of applicable

standards). In addition, Dayne points us to no express language in the Texas Human

Resources Code or the Texas Administrative Procedures Act (APA) that provides for a

waiver of sovereign immunity based on regulatory control, and we find none. See Fed.

Sign v. Tex. S. Univ., 951 S.W.2d 401, 404-05 (Tex. 1997) (superseded by statute on

other grounds) (providing that the state retains immunity from suit unless it has been
                                           11
expressly waived); see also Tex. Logos v. Tex. Dep't of Transp., 241 S.W.3d 105, 123

(Tex. App.—Austin 2007, no pet.) ("[A]bsent express statutory authority, the APA does

not independently provide a right to a contested case hearing.").

       Dayne relies on City of Denton v. Page and Campos as authority for this argument.

See City of Denton, 701 S.W.2d 831, 832-35 (Tex. 1986); Campos, 162 S.W.3d at 782.

In City of Denton, the Pages sued the owner of a building and the City of Denton for

personal injuries sustained as the result of a fire in the storage building, a fire apparently

set by an arsonist. 701 S.W.2d at 833. The Pages' theory, in part, was not that the

storage building had a physical defect, but that the building's condition was unsafe

because of how it was used for storing gasoline. Id. Therefore, the issue identified by

the court was "whether the dangerous condition of the storage building is a condition of

real property on which Page may base a waiver of the City of Denton's governmental

immunity." See id. at 834.

       The Pages alleged that this dangerous, unsafe condition of the building—how it

was used—was a condition of the real property for which the City of Denton was liable.

Id. at 833. Reversing the trial court and the appellate court, the Texas Supreme Court

disagreed, holding that there was no waiver of sovereign immunity for the City of Denton

and rendering judgment in its favor.       Id. at 835.    Dayne specifically relies on the

supreme court's statement in City of Denton that "[i]t is possession and control which

generally must be shown as a prerequisite to liability." Id. at 836.

       Now, on appeal, Dayne attempts to analogize the facts of City of Denton to this

case and to differentiate the reasoning. He contends that, like City of Denton, he did not

claim that Shoreline had a physical defect; instead, like City of Denton, he claimed that
                                           12
the condition of Shoreline was unsafe and dangerous. Dayne then asserts that, unlike

City of Denton, he pleaded a relationship of regulatory control by DFPS over Shoreline

and its property which reaches liability created in section 101.021(2) of the TTCA. See

id.

       However, City of Denton is distinguishable. It did not include any allegations that

the City had control of the arsonist involved, and it did not involve assertions that the

arsonist who committed the intentional tort was the dangerous condition. City of Denton

involved allegations regarding the condition of the property itself, e.g., the undiscovered

gasoline tanks in the barn which the court concluded were not possessed or controlled by

the City of Denton. Id. at 835. Unlike City of Denton, DFPS was not physically on the

Shoreline premises. DFPS did not take physical control or possession of the premises.

Moreover, City of Denton references the physical condition of the barn and its contents as

the dangerous condition.    Id.   Dayne does not complain about Shoreline's physical

condition.   Rather, he complains only about the intentional torts of Shoreline's

employees which he alleges proximately caused harm to M.F.R.D. and for which DFPS

should be held liable through its alleged regulatory control. City of Denton does not

address regulatory control as a theory of recovery. We conclude that City of Denton

provides no support for Dayne's regulatory-control argument.

       In Campos, the plaintiffs filed suit against prison guards and Nueces County for

alleged sexual harassment and sexual assaults committed by guards. 162 S.W.3d at

782. Campos, however, is also distinguishable from this case on multiple grounds.

       As an initial matter, it was undisputed that the premises about which the plaintiffs

complained in Campos was owned and operated by Nueces County, Texas, the
                                  13
governmental unit, and that Nueces County provided that substance abuse treatment

facility with equipment and utilities.   Id. at 785.   In this case, it is undisputed that

Shoreline, not DFPS, owns the complained-of facility. In addition, in Campos, while this

Court held that the alleged intentional torts, as well as the negligent hiring, training, and

supervision claims against Nueces County, were barred by the TTCA, we also held that

the alleged defective condition of the premises could provide a basis for a waiver of

sovereign immunity. Id. at 786-87. This holding was based on a second, obvious

distinction between Campos and the present case. In Campos, the plaintiffs alleged that

the Nueces County premises were defective because certain security cameras were

either nonfunctioning or improperly placed, and that various doors, rooms, and

enclosures, which permitted guards to have unlimited, unmonitored access to inmates,

provided the seclusion necessary for the alleged intentional torts. Id. at 785. Dayne's

complaints are not about the premises, the facility, or the equipment owned by Shoreline.

Instead, Dayne's complaints are about the alleged intentional torts by Shoreline's

employees. Thus, we conclude that Campos provides no support for this argument.

       Based on the above analysis, we conclude that Dayne's control argument does not

support his first issue.

       3. Negligent Acts

       To the extent that Dayne's pleadings state claims for negligent hiring, negligent

training, and negligent supervision of Shoreline's employees, we conclude that such

claims do not bring his lawsuit under the TTCA's waiver of sovereign immunity, in the

absence of the use of real or tangible personal property. See Campos, 162 S.W.3d at

787-88. "Where the allegation stems from negligent judgment or human error rather
                                       14
than a use or misuse of property, the pleadings fail to satisfy the limited waiver of

immunity contained within the [TTCA]."       Atwood, 176 S.W.3d at 528 (citing City of

Houston v. Rushing, 7 S.W.3d 909, 915 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd)

(en banc)). "To state a claim under the [TTCA], a plaintiff must allege an injury resulting

from the 'condition or use of tangible personal or real property.'" Tex. Dep't of Pub.

Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). We have already concluded that

Dayne has not done so in this case.

       4. Failure to Act

       Finally, Dayne alleges that DFPS failed to ensure that Shoreline hired professional

staff, failed to investigate, and failed to take other actions to eliminate the alleged

defective condition or use of the Shoreline Property. The Texas Supreme Court has long

held that alleging "failure to do something" is not a waiver of sovereign immunity.

Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) ("We have never held that a non-use of

property can support a claim under the [TTCA]. Section 101.021, which requires the

property's condition or use to cause the injury, does not support this interpretation.").

       Moreover, the Kassen Court held that not using information in a medical record,

such as a "difficult patient file," did not waive sovereign immunity. 887 S.W.2d at 14

(citing Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 176 (Tex. 1994)). Similarly,

the argument in this case appears to be that DFPS was negligent when it failed to use

records or information regarding M.F.R.D. or Shoreline's employees because it knew or

should have known that Shoreline's employees would allegedly commit an intentional tort

against M.F.R.D. These allegations do not describe the use or condition of real property

or of tangible personal property and, under Kassen, are merely allegations involving
                                         15
information in records that was available but allegedly not used; therefore, none of these

allegations result in a waiver of sovereign immunity. See id. (citing Petta, 44 S.W.3d at

581).

        5. Private Person

        Asserting the following argument, Dayne further contends:

        [B]ased on the quantum of control which [DFPS] had over Shoreline . . . ,
        especially the degree and detail to which it was involved in employee
        staffing and the substantial and pervasive right of the DFPS to conduct
        investigations and inspections, DFPS'[s] relationship with Shoreline is that
        of an employer-employee or principal-agent. That being the case, the
        DFPS, if it were a private person, would be negligent according to Texas
        law and liable to Appellants by application of the doctrine of respondeat
        superior, i.e., making the employer or principal liable for the negligence, etc.
        of his employee or agent causing injury and damage to a person(s) to whom
        the employer or principal owed a duty of care, provided that the affected
        employee or agent was acting in the course of his or her employment at the
        time of such negligence or wrongful conduct.

However, even if DFPS could be held liable as a private person based on its relationship

with Shoreline as Dayne argues, he must still establish that DFPS waived immunity by the

condition or use of real property that caused an injury to M.F.R.D. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2). Because we have already determined that Dayne has

not done so, we reject this argument.

D. Summary

        Having concluded that none of Dayne's arguments support a waiver of sovereign

immunity pursuant to the TTCA, we overrule Dayne's first issue.

                                       III. SEVERANCE

        By his second issue, Dayne contends that the trial court abused its discretion in

granting DFPS's motion to sever. He argues that the trial court's actions were erroneous

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because the DFPS's severed cause of action was so interwoven with the remaining

claims against the other defendants that it involved identical facts and issues and, thus,

should not have been severed. See Guar. Fed. Sav. v. Horseshoe Operating Co., 793

S.W.2d 652, 658 (Tex. 1990). Dayne claimed he was harmed because (1) DFPW, the

"major actor of control in the overall cause," would be absent from a separate trial with the

remaining, unsevered defendants, and (2) any trial of the causes against DFPS at a later

date would necessarily involve some if not all of the remaining defendants for evidentiary

issues.

A. Standard of Review and Applicable Law

       Texas Rule of Civil Procedure 41 provides that "any claim against a party may be

severed and proceeded with separately." TEX. R. CIV. P. 41. A trial court's decision to

sever will be reversed only upon a finding of an abuse of discretion. Guar. Fed. Sav.,

793 S.W.2d at 658. A severance is proper if: (1) the controversy involves more than

one cause of action, (2) the severed cause is one that would be the proper subject of a

lawsuit if independently asserted, and (3) the severed cause is not so intertwined as to

involve identical facts and issues. Id. The controlling reasons for severance are to do

justice, avoid prejudice, and further the convenience of the parties and the court. Id.; see

also Garrison v. City of Leon Valley, No. 04-04-00714, 2005 Tex. App. LEXIS 1761, at

*12-13 (Tex. App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.) (granting the City's

plea to the jurisdiction based on immunity and severing his claims against the City from

those claims against the other defendants).

B. Analysis

       An interlocutory order granting a plea to the jurisdiction is immediately appealable.

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See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (providing for an

appeal from an interlocutory order granting or denying "a plea to the jurisdiction by a

governmental unit"). Such an interlocutory appeal would normally stay all proceedings

in the trial court pending resolution of the appeal. See id. § 51.014(b). Here, however,

the trial court was presented with a meritorious plea to the jurisdiction, correctly

determining that Dayne's allegations against DFPS had failed to invoke its subject-matter

jurisdiction. Instead of allowing the cause to be stayed pending an interlocutory appeal,

the trial court apparently determined that justice and convenience would be furthered by

severing Dayne's claims against DFPS from those against the other defendants in the

cause. See Guar. Fed. Sav., 793 S.W.2d at 658; see also Garrison, No. 04-04-00714,

2005 Tex. App. LEXIS 1761, at *4. Under the facts of this case, we cannot conclude that

the trial court abused its discretion when it granted DFPS's motion to sever. We overrule

Dayne's second issue.

                                    IV. CONCLUSION

       Having concluded that Dayne failed to plead facts that would bring his claim under

the TTCA and that the trial court did not abuse its discretion in severing Dayne's claims

against DFPS from his claims against the remaining defendants, we affirm the trial court's

order granting of DFPS's plea to the jurisdiction and its motion to sever.



                                                               NELDA V. RODRIGUEZ
                                                               Justice


Delivered and filed the 20th
day of October, 2011.



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