Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00231-CV CITY OF LAREDO, Appellant v. Jorge CIGARROA, Appellee From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2024CVF000702D1 Honorable Joe Lopez, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Irene Rios, Justice Lori Massey Brissette, Justice Velia J. Meza, Justice Delivered and Filed: September 9, 2026 REVERSED AND RENDERED Appellant City of Laredo (the “City”) appeals the trial court’s order denying its plea to the jurisdiction based on governmental immunity. We reverse the trial court’s order and render judgment dismissing Cigarroa’s claims for lack of jurisdiction. BACKGROUND Laredo Police Officers Sergio Flores and Luis Ferdin conducted a traffic stop of Cigarroa, who claimed his mother-in-law had just died and he was rushing to her house to be with his wife. 04-25-00231-CV According to Cigarroa, the officers refused to follow him to his mother-in-law’s house nearby. Matters then escalated between Cigarroa and the officers, and Cigarroa was arrested. Cigarroa contends he was injured during the arrest when Officer Flores grabbed and yanked him; struck him numerous times, including several times with a police baton; and shoved and smashed his face against the police vehicle. Cigarroa claimed Officer Ferdin observed Officer Flores engage in these actions but did nothing to stop Officer Flores. The charges against Cigarroa were dismissed. Initially, Cigarroa filed suit against the City and the officers in federal court, which was subsequently dismissed with prejudice. Cigarroa then filed suit in state court. As alleged in his first amended petition, the live pleading at issue in this appeal, Cigarroa suffered several injuries, “including but not limited to, injuries to his arms, wrists, rib cage, and head, requiring medical intervention,” from the actions or inactions taken by the officers during his arrest. Pursuant to the Texas Tort Claims Act (the “TTCA”), Cigarroa asserted his injuries resulted from the officers’ negligent “use and/or misuse of a police vehicle, handcuffs, and/or police batons.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. In response, the City filed a plea to the jurisdiction and motion to dismiss. Based on the doctrine of res judicata, the City moved to dismiss Cigarroa’s claims, asserting they are barred because he initially brought an identical suit based on the same facts in federal court, and the federal lawsuit was dismissed with prejudice. Moreover, in its plea to the jurisdiction, the City asserts it did not waive its immunity to suit under the TTCA and that Cigarroa’s first amended petition merely recasts his intentional tort claims—unlawful arrest, use of excessive force, and assault— as negligence claims by contending the officers used or misused tangible personal property in causing his injuries. -2- 04-25-00231-CV Following an evidentiary hearing, the trial court denied the City’s plea to the jurisdiction and motion to dismiss. The trial court ordered Cigarroa’s claims to proceed against the City pursuant to the TTCA. Subsequently, the City filed this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). THE CITY’S APPELLATE ISSUES The City raises two issues on appeal. First, the City argues that pursuant to the doctrine of res judicata, the trial court erred by not dismissing Cigarroa’s claims because the claims have already been litigated in federal court. Second, the City contends the trial court erred in denying its plea to the jurisdiction as the City’s alleged conduct involves intentional torts for which the TTCA expressly preserves immunity. Because the City’s governmental immunity is dispositive in this interlocutory appeal, we only address the City’s second issue. PLEA TO THE JURISDICTION AND GOVERNMENTAL IMMUNITY Subject matter jurisdiction is essential to a court’s authority to decide a case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The plaintiff has the burden to affirmatively demonstrate a trial court’s jurisdiction. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). That burden includes the obligation to establish a waiver of governmental immunity in suits against the government. See id.; City of San Antonio v. Smith, 562 S.W.3d 75, 80 (Tex. App.—San Antonio 2018, pet. denied). Under Texas law, governmental units, including cities, are generally entitled to governmental immunity from suit and liability unless the state legislature clearly and unambiguously waives immunity. See Harris County v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018) (explaining governmental immunity provides protection from suit and liability to the state’s political subdivisions, such as counties, cities, and school districts); see also TEX. CIV. PRAC. & -3- 04-25-00231-CV REM. CODE ANN. § 101.001(3)(B) (defining “governmental unit” to include cities). Because governmental immunity implicates a trial court’s subject matter jurisdiction, a city may challenge the trial court’s jurisdiction by asserting governmental immunity in a plea to the jurisdiction. See City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457 (Tex. 2020). Whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s jurisdiction is a question of law we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Smith, 562 S.W.3d at 79. When, as here, a plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally in the plaintiff’s favor and look to the plaintiff’s intent. See Miranda, 133 S.W.3d at 226. If the pleadings do not allege sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not negate the trial court’s jurisdiction, the trial court should give the plaintiff the opportunity to amend his pleadings. See id. at 226–27. If, however, the pleadings affirmatively negate jurisdiction, then the trial court should grant the plea to the jurisdiction, without allowing the plaintiff an opportunity to amend. See id. at 22. WAIVER OF GOVERNMENTAL IMMUNITY UNDER THE TEXAS TORT CLAIMS ACT The legislature created a limited waiver of governmental immunity for suits brought against governmental entities under the TTCA. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001- .109. In pertinent part, the TTCA waives governmental immunity for personal injury caused by the negligent use of tangible personal property. See id. § 101.021(2) (providing waiver of governmental immunity for “personal injury . . . 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”); see also City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). However, the TTCA does not waive immunity for intentional torts like “assault, battery, [or] false -4- 04-25-00231-CV imprisonment.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2); see Gordon, 434 S.W.3d at 589. CLAIM FOR NEGLIGENT USE OF TANGIBLE PERSONAL PROPERTY Cigarroa’s petition alleges that Officers Flores and Ferdin’s negligent use or misuse of tangible personal property during his arrest caused him to suffer personal injuries, and thus, the City’s immunity is waived under TTCA section 101.021(2). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). While the City does not agree that the officers used excessive force during Cigarroa’s arrest, the facts surrounding his arrest involve Officer Flores’s use of handcuffs and his police baton, as well as the police vehicle while Officer Flores effectuated Cigarroa’s arrest. Cigarroa accused Officer Ferdin of failing to intercede on his behalf as he merely stood and watched Officer Flores’s actions. Therefore, for purposes of this case, we are concerned only with Officer Flores’s “use of tangible personal property” in the form of handcuffs, a police baton, and the police vehicle. On appeal, the City asserts that Officer Flores’s use or misuse of handcuffs, a police baton, and the police vehicle (while parked and stationary) in the context of an arrest constitutes an intentional tort which is excluded from the TTCA’s waiver of immunity. See id. § 101.057(2). Therefore, the City argues Cigarroa’s attempt to circumvent the exception—by alleging that such intentional tort actions were performed negligently—fails. As stated above, TTCA section 101.057 provides that the TTCA’s waiver of governmental immunity does not apply to a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” See id. § 101.057(2). The Texas Supreme Court has held that “the actions of a police officer in making an arrest necessarily involve a battery, although the conduct may not be actionable because of privilege.” Gordon, 434 S.W.3d at 594. The issue in Gordon concerned -5- 04-25-00231-CV “whether an arrestee’s lawsuit against a city for injuries, accidentally caused by a police officer’s use of handcuffs, states a battery or [a] negligence claim.” Id. at 587–88. The court reasoned that the gravamen of Gordon’s complaint that his wrists were injured because the handcuffs were too tight was that the police officer used excessive force in effecting his arrest. Id. at 593. The court concluded, “[c]laims of excessive force in the context of a lawful arrest arise out of a battery rather than negligence, whether the excessive force was intended or not.” Id. Noting that a police officer is privileged to use reasonable force, the court explained, “[b]ut a police officer’s mistaken or accidental use of more force than reasonably necessary to make an arrest still ‘arises out of’ the battery claim” because “there is no such thing as a negligent battery, since battery is defined to require an intentional touching without consent not a negligent one.” Id. at 594. Here, as in Gordon, the gist of Cigarroa’s claim that he suffered personal injuries due to the officer’s use or misuse of handcuffs and a police baton amounts to a claim of excessive force during his arrest, which is a “claim [] for battery alone,” not negligence. Id. at 593; see also Lopez v. City of El Paso, 621 S.W.3d 762, 765–66 (Tex. App.—El Paso 2020, no pet.) (“The officers arrested [Lopez], and he alleged that they negligently employed a baton while using excessive force. Courts, however, view these torts as intentional, not negligent, and thus ineligible for waivers of sovereign immunity.”); City of Laredo v. Reyna, No. 04-15-00147-CV, 2015 WL 4479834, at *2 (Tex. App.—San Antonio July 22, 2015, no pet.) (mem. op.) (concluding the use of a baton is encompassed within the TTCA’s exclusion of claims arising from intentional torts); City of Garland v. Rivera, 146 S.W.3d 334, 337-38 (Tex. App.—Dallas 2004, no pet.) (explaining that immunity was not waived for officer’s intentional use of departmentally-issued property consisting of pepper spray, handcuffs, and police service dog in making arrest); City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.—San Antonio 1990, writ denied) (holding that injuries -6- 04-25-00231-CV caused to arrestee by excessively tight handcuffs during high speed transport to jail “certainly cannot be attributed to the City as negligence”). Similarly, Cigarroa’s allegation that he was injured when Officer Flores “shoved” him or “smashed his face” up against the police vehicle arises out of the battery, not negligence. See Gordon, 434 S.W.3d at 594; see also City of Laredo v. Nuno, 94 S.W.3d 786, 789–90 (Tex. App.— San Antonio 2002, no pet.) (holding immunity was not waived for officer’s intentional use of handcuffs or improper placement of the arrestee into the police vehicle, as “the vehicle did no more than furnish the condition that made the injury possible”). Cigarroa alleged no further allegations involving the police vehicle. Moreover, Cigarroa failed to allege that Officer Ferdin engaged in any other action involving tangible personal property not otherwise attributed to Officer Flores’s actions that could serve as the basis for waiver of the City’s governmental immunity. Therefore, we conclude Cigarroa does not allege a distinct negligence claim that does not arise out of the battery, i.e., arrest. Thus, Cigarroa’s claims are barred by the intentional tort exception. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2). Accordingly, we sustain the City’s second appellate issue. CONCLUSION Based on the foregoing reasons, we reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment dismissing Cigarroa’s claims with prejudice for lack of jurisdiction. 1 Irene Rios, Justice 1 We need not consider the City’s res judicata issue as its resolution could afford no further relief than we grant in this opinion. See TEX. R. APP. P. 47.1. -7-