Van Zandt County, Texas v. Earnest W. Whitaker--Appeal from 294th District Court of Van Zandt County

NO. 12-05-00409-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

VAN ZANDT COUNTY, TEXAS, APPEAL FROM THE 294TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

EARNEST W. WHITAKER,

APPELLEE VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Van Zandt County appeals the denial of its plea to the jurisdiction. Earnest W. Whitaker sued Van Zandt County pursuant to the Texas Tort Claims Act for injuries he allegedly suffered at the hands of county employees. In one issue, the county asserts the trial court erred in determining it had waived sovereign immunity. We reverse and render.

Background

On June 19, 2003, Whitaker was arrested by sheriff s deputies Jimmy Harris and George Flowers. The arrest did not go smoothly. Harris sued Whitaker for damages he allegedly incurred during the arrest. Whitaker filed a counter suit against the county, alleging he was injured during the arrest. The county filed a plea to the jurisdiction claiming sovereign immunity, which the trial court denied. The county now appeals that ruling.

Sovereign Immunity

In its sole issue, the county asserts the trial court erred in overruling its plea to the jurisdiction because Whitaker has not shown that the county waived sovereign immunity. The county contends that Whitaker s allegations involve only intentional torts, which are specifically exempted from the Texas Tort Claims Act and, therefore, do not trigger its waiver provisions. Accordingly, it argues, the trial court lacked jurisdiction over the claims against it.

Applicable Law

Immunity from suit bars an action against the State unless the State expressly consents to the suit. Texas Dep t of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Since as early as 1847, the law in Texas has been that absent the State s consent to suit, a trial court lacks subject matter jurisdiction. Id. The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject matter jurisdiction presents a question of law, we review the trial court s decision to grant a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

In reviewing a plea to the jurisdiction, we review the pleadings and any evidence relevant to the jurisdictional issue. Texas Dep t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The party suing the governmental entity must establish the State s consent, which may be alleged either by reference to a statute or to express legislative permission. Jones, 8 S.W.3d at 638. In considering the jurisdictional allegations contained in a petition, they are to be construed liberally in the plaintiff s favor. Texas Ass n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

The Tort Claims Act (the Act ) provides a limited waiver of sovereign immunity in certain circumstances:

A governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(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 (Vernon 2005). To sue the State for a tort, the pleadings must state a claim under the Act. Jones, 8 S.W.3d at 639. The waiver of immunity contained in the Act does not extend to claims arising out of intentional torts. Tex. Civ. Prac. & Rem. Code Ann. 101.057 (Vernon 2005). However, an injured party may pursue a separate negligence claim focusing on the governmental entity s negligent conduct rather than the intentional conduct of its employee, even if the negligence claim arises out of the same facts. Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990); City of Laredo v. Nuno, 94 S.W.3d 786, 789 (Tex. App. San Antonio 2002, no pet.).

Discussion

In his First Amended Third Party Claim for Contribution, Whitaker alleged in paragraph five that Flowers sprayed pepper spray, Harris and Flowers used excessive force, and the unnecessary aggressive use of handcuffs and pepper spray constitutes negligence. In paragraph six of that document, Whitaker alleged that in implementing the county s procedures with respect to the use of handcuffs and pepper spray, Harris and Flowers were negligent. In his First Amended Petition Against Third Party Defendant, Whitaker alleged in paragraph seven that Harris and Flowers assaulted Whitaker with a club, handcuffs, and pepper spray. In paragraph eight of that document, he alleged that Harris and Flowers were negligent with respect to the use of the club, handcuffs, and pepper spray.

The only use of the club, handcuffs, and pepper spray specifically described in the petitions is assault. The specific conduct, use of these items to arrest Whitaker, is intentional. Texas Dep t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Nuno, 94 S.W.3d at 788-89. Whitaker s allegations fit within the Section 101.057 exclusion of claims arising out of intentional torts.

We next consider whether the petitions also allege negligence. The term unnecessary aggressive use does not describe the specific act to show it is different from the intentional acts of spraying Whitaker with pepper spray or putting handcuffs on him. These intentional acts provide the basis for the allegation that the deputies committed the intentional tortious act of using excessive force to arrest Whitaker. See Nuno, 94 S.W.3d at 789. While it may be possible to negligently use these items during the course of an arrest, these petitions do not describe negligent acts. They describe the intentional act of assault. Whitaker s claim for negligent implementation of county procedures likewise alleges the same intentional acts. See Petta, 44 S.W.3d at 580. The focus of the claims is on the officers intentional tortious conduct despite Whitaker s efforts to phrase the claims in terms of negligence. Whitaker s allegations do not fall within the waiver of sovereign immunity. See id.; City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App. Dallas 2004, no pet.). Because Whitaker did not meet his burden to show immunity has been waived, the trial court erred in denying the county s plea to the jurisdiction. We sustain the county s issue.

Conclusion

Whitaker alleged only claims based on intentional acts against which governmental units retain their immunity. Because the trial court erred in denying the county s plea to the jurisdiction, we reverse and render judgment granting the plea to the jurisdiction and dismissing Whitaker s suit against the county for want of jurisdiction.

SAM GRIFFITH

Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)