Peggy Johnson, Individually and as Administratrix of the Estate of Eugene Johnson, and as Next Friend of David Johnson and Jonathan Johnson v. Johnson County--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00095-CV

Peggy Johnson, Individually and

as Administratrix of the Estate

of Eugene Johnson, and as Next

Friend of David Johnson and

Jonathan Johnson,

Appellant

v.

Johnson County,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. C200400416

Opinion

Eugene Johnson hanged himself with the mattress cover in a Johnson County jail cell. Appellant brought suit against Johnson County, and now appeals the trial court s dismissal of her cause of action. We affirm.[1]

In Appellant s one issue, she contends that the trial court erred in granting Johnson County s plea to the jurisdiction, which was premised upon governmental immunity.

Absent an express waiver of its sovereign immunity, the State is generally immune from suit. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); accord Lowe v. Tex. Tech. Univ., 540 S.W.2d 297, 298 (Tex. 1976); Tex. Highway Dep t v. Weber, 147 Tex. 628, 630, 219 S.W.2d 70, 71 (1949). In Texas, the bar of sovereign immunity is a creature of the common law and not of any legislative enactment. Tex. A&M Univ. v. Lawson, 87 S.W.3d 518, 520 (Tex. 2002); see Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006). The appurtenant common-law doctrine of governmental immunity similarly protects political subdivisions of the State, including counties . . . . Ben Bolt Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006); see Harris County Flood Control Dist. v. Mihelich, 525 S.W.2d 506, 508 (Tex. 1975). The Supreme Court ha[s] construed that immunity to deprive the courts of subject matter jurisdiction over suits against the state or its subdivisions. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006) (citing Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)).

A governmental unit in the state is liable, however, for 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 (Vernon 2005). Governmental unit includes counties. Id. 101.001(3)(B) (Vernon 2005).

Appellate courts reviewing a challenge to a trial court s subject matter jurisdiction review the trial court s ruling de novo. Miranda, 133 S.W.3d at 228 (citing Tex. Natural Res. Conserv. Comm n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)). When a plea to the jurisdiction challenges the pleadings, . . . [w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleaders intent. Miranda at 226. [I]f 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 . . . . Id. at 227. When we consider evidence in this context, we take as true all evidence favorable to the nonmovant [i.e., the plaintiff]. We indulge every reasonable inference and resolve any doubts in the nonmovant s favor. City of Waco v. Lopez, 183 S.W.3d 825, 827 (Tex. App. Waco 2005, pet. granted on other grounds) (quoting Miranda at 228) (alteration in Lopez).

Johnson County relies primarily on San Antonio State Hospital v. Cowan. See San Antonio State Hosp. v. Cowan, 128 S.W.3d 244 (Tex. 2004). In Cowan, when the decedent was admitted to the hospital, the hospital allowed him to keep his suspenders and walker with him. Id. at 245. He used the suspenders and part of the walker to hang himself. Id. The Texas Supreme Court held that the hospital, in providing the decedent with the suspenders and walker, did not use them within the meaning of Section 101.021. [S]ection 101.021(2) waives immunity for a use of personal property only when the governmental unit is itself the user. Id. at 245-46; Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); accord LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). Use means to put or bring into action or service; to employ for or apply to a given purpose. Cowan at 246 (quoting Beggs v. Tex. Dep t of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App. San Antonio 1973, writ ref d)); accord Bishop at 583. A governmental unit does not use personal property merely by allowing someone else to use it and nothing more. If all use meant were to make available , the statutory restriction would have very little force. Cowan at 246; see Bishop at 583; Forgan v. Howard County, 494 F.3d 518, 521 (5th Cir. 2007).[2]

In Texas A & M University v. Bishop, similarly, faculty advisers of a drama club or the director of a performance by the club provided a Bowie knife for use in the performance. Bishop, 156 S.W.3d at 581-82. In the course of the performance, one student stabbed another with the knife. Id. at 582. The Supreme Court held that, that did not constitute a use of the knife by the advisers within the meaning of Section 101.021. Id. at 583.

Appellant attempts to distinguish Cowan. See Cowan, 128 S.W.3d 244. Appellant argues: Unlike the state mental hospital in Cowan, the County did more than simply make available to Eugene his own property by failing to take it away from him. In the present case, the County affirmatively issued Eugene the bedding and locked him into the cell actually used in the suicide. (Br. at 17.) Appellant argues that her case is more similar to that in Overton Memorial Hospital v. McGuire than to Cowan. See Overton Mem l Hosp. v. McGuire, 518 S.W.2d 528 (Tex. 1975) (per curiam). In McGuire, the plaintiff was injured when he fell out of a hospital bed that lacked side rails. Id. at 528. But the Supreme Court has held that cases such as McGuire represent the outer bounds of what [is] defined as use of tangible personal property, and ha[s] applied them narrowly . . . . Bishop, 156 S.W.3d at 584 (quoting Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996)).

Appellant relies primarily on Martinez v. City of Brownsville, citing it for the proposition that jail cell bars used by an inmate to hang himself constituted the use of tangible personal property. (Br. at 13 (citing Martinez v. City of Brownsville, No. 13-00-425-CV, 2001 Tex. App. LEXIS 6131, at *23 (Tex. App. Corpus Christi Aug. 31, 2001, pet. denied) (not designated for publication)).) Assuming that Martinez was correctly decided, it was decided before and is effectively overruled by Cowan. See Cowan, 128 S.W.3d 244.

Johnson County s providing Eugene Johnson with a jail cell and mattress cover is closer to the drama-club advisers providing students with a knife to use in a production in Bishop, or to the hospital s making the patient s suspenders and walker available to him in Cowan, than to the hospital s use of a bed to treat a patient in McGuire. See Bishop, 156 S.W.3d 580; Cowan, 128 S.W.3d 244; McGuire, 518 S.W.2d 528. Johnson County s incarcerating Eugene Johnson in a jail cell containing a mattress cover did not constitute a use of that property proximately causing his death within the meaning of Civil Practice and Remedies Code Section 101.021. See Tex. Civ. Prac. & Rem. Code Ann. 101.021. Evidence favorable to Appellant being taken as true, the trial court did not err in granting Johnson County s plea to the jurisdiction and dismissing Appellant s cause of action.[3] We overrule Appellant s issue.

Having overruled Appellant s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance dissenting)

Affirmed

Opinion delivered and filed January 30, 2008

[CV06]

[1] This memorandum opinion is designated an Opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the author of a dissenting opinion opposes its designation as a memorandum opinion. See Tex. R. App. P. 47.4. That dissenting opinion is then disingenuous in its criticism that the opinion omits a recitation and discussion of Appellant s pleadings and evidence. Such a recitation and discussion is unnecessary in a memorandum opinion.

[2] The facts of Forgan are strikingly similar to those of this case. See Forgan, 494 F.3d at 519. In Forgan the decedent used county-issued clothing to hang himself while in jail. Id. The plaintiffs brought suit in federal district court under, and the federal court applied, Texas law under Erie. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The federal court determined that there was no waiver of immunity under Texas law on the facts of that case. Forgan at 520-21. We believe that the federal court correctly interpreted and applied Texas law and, while Forgan is not binding precedent, it is certainly persuasive authority.

[3] Appellant also pleaded a cause of action for premises defect. To the extent that Appellant does not attack the independent ground raised in the plea to the jurisdiction as to Appellant s other cause of action, we affirm. See Fox v. Wardy, No. 08-04-00114-CV, 2005 Tex. App. LEXIS 5879, at *6 (Tex. App. El Paso July 28, 2005, pet. denied); Juarez v. Miller, No. 05-04-01305-CV, 2005 Tex. App. LEXIS 4331, at *2 (Tex. App. Dallas June 7, 2005, pet. denied) (mem. op.); Britton v. Tex. Dep t of Crim. Justice, 95 S.W.3d 676, 680-81 (Tex. App. Houston [1st Dist.] 2002, no pet.).