Johnson v. Johnson County

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 *109court’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.-Kingsville 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. Sub-divs. 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 nonmov-ant [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 *110of 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. “[Sjection 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.” Co-wan 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 Co-wan. 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 eases 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 WL 1002399, at *8, 2001 Tex.App. LEXIS 6131, at *23 (TexApp.-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 Co-wan, 128 S.W.3d 244.

*111Johnson 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. & RemlCode 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.