Appeal from the 165th District Court Harris County, Texas
Trial Court Cause No. 2015-58707
consists of Justices Busby, Donovan, and Brown.
W. Brown Justice.
interlocutory appeal, Lori Annab contends the trial court
erred in granting Harris County's plea to the
jurisdiction. Annab raises three issues on appeal: (1) the
trial court erred if the grant of Harris County's plea
was based on the Texas Tort Claims Act (TTCA) intentional
torts exclusion; (2) the trial court erred in granting the
plea because the evidence raised a fact issue as to Harris
County's use or misuse of property; and (3) the trial
court erred in granting the plea because Harris County failed
to conclusively prove the trial court lacked jurisdiction. We
affirm in part and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
November 11, 2014, Kenneth Caplan, using his Glock firearm,
shot and injured Annab. At the time of the incident, Caplan
was a Deputy Constable for Harris County. In applying for
employment with Harris County, Caplan disclosed that he was
on medication for mood stabilization due to a chemical
imbalance. In the five years prior to his employment with
Harris County, Caplan held 21 jobs and was fired from 12.
Caplan was dismissed from the College of the Mainland Law
Enforcement Academy within four months of entering. The
separation form indicated Caplan's dismissal was the
result of: (1) failing minimum standards for safety in
performing traffic stops and building entries for Patrol
Procedures - liability concerns; (2) violation of rules by
jumping chain of command on three occasions; (3) inability to
function as a team member and increasing hostility towards
classmates; and (4) ethics - lying.
Caplan was hired, he identified and disclosed his Glock
firearm as his primary weapon. Harris County approved and
authorized the use and possession of the firearm at all times
during Caplan's employment. Harris County had the
authority to withdraw its approval and authorization of the
the November 11 incident, Caplan was involved in four other
incidents. Caplan exhibited anger management issues working
as a security guard on August 7, 2012. He yelled, screamed,
and cursed at supervisors and threatened a supervisor or
co-worker that if stopped for a traffic violation he would go
to jail, not simply receive a ticket. Caplan was involved in
a road rage incident on November 11, 2013. During the
incident, Caplan sped up to make sure the driver could see
him motioning as though he was shooting at her. He repeatedly
yelled at her, loud enough for her and her children to hear,
that he intended to shoot them. The driver believed Caplan
was armed as he was in uniform. Caplan again exhibited road
rage behavior by stopping his personal vehicle in the middle
of the street to stop a driver on July 4, 2014. Caplan exited
his vehicle and approached the driver who was a uniformed
Houston Police Department officer. He voiced expletives at
the officer prior to returning to his car. Caplan exhibited
hostility towards two other officers by striking their
vehicle twice on July 24, 2014.
filed suit against Harris County, Caplan, and Carole Busick,
Ph.D. Annab's claims against Harris County arise under
the TTCA. Specifically, in her third amended original
petition, Annab alleged: (1) use and misuse of property by
hiring Caplan insofar as Harris County used and devoted funds
and property toward him; (2) use and misuse of property by
repeatedly approving, authorizing, and qualifying Caplan to
have, possess, and use the firearm; and (3) use and misuse of
property by negligently failing to withdraw and revoke
approval and authorization for Caplan to possess and use the
firearm before the November 11 incident. Annab contends the
negligent acts were the proximate cause of the incident in
question and the severe injuries and losses she sustained.
County filed a plea to the jurisdiction. Annab filed a
response arguing the trial court had jurisdiction and
requesting the plea be denied. Evidence was submitted with
Harris County's and Annab's motions. Following a
hearing, the trial court granted Harris County's plea to
the jurisdiction. This interlocutory appeal followed.
Texas, a governmental unit is immune from tort liability
unless immunity has been waived by the legislature or the
governmental unit has consented to suit. Tex. Dep't
of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004) (consent to suit); Dallas Cty. Mental Health
and Mental Retardation v. Bossley, 968 S.W.2d 339, 341
(Tex. 1998) (legislative waiver). "The Texas Tort Claims
Act provides a limited waiver of sovereign immunity."
Miranda, 133 S.W.3d at 224. Sovereign immunity
includes immunity from suit and immunity from liability.
Id. "Immunity from liability is an affirmative
defense, while immunity from suit deprives a court of subject
matter jurisdiction." Id. The two immunities
are co-extensive under the TTCA. Id. Absent express
waiver under the TTCA, Harris County will be immune from
suit. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.001(3)(B) (West Supp. 2016) (defining governmental
unit to include a political subdivision of the state);
Miranda, 133 S.W.3d at 224-25.
Standard of Review
immunity is properly asserted in a plea to the jurisdiction.
Miranda, 133 S.W.3d at 226. A plea to the
jurisdiction is a dilatory plea; its purpose is "to
defeat a cause of action without regard to whether the claims
asserted have merit." Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea
challenges the trial court's jurisdiction over the
subject matter of a pleaded cause of action.
Miranda, 133 S.W.3d at 226. We review a trial
court's ruling on a plea to the jurisdiction de
novo. Id. at 228.
plaintiff bears the burden of alleging facts that
affirmatively demonstrate the trial court's jurisdiction.
Id. at 226. "When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court's
jurisdiction to hear the cause." Id. We must
accept as true all factual allegations in the petition,
construe the pleadings liberally, and look to the
pleader's intent. Id. at 226-27. A plea to the
jurisdiction may be granted without allowing amendment if the
pleading affirmatively negates the existence of jurisdiction.
Id. at 227. If the pleadings do not affirmatively
demonstrate incurable defects in jurisdiction, the plaintiff
should be afforded the opportunity to amend. Id.
the governmental unit challenges the existence of
jurisdictional facts, and the parties submit evidence
relevant to the jurisdictional challenge, we consider that
evidence when necessary to resolve the jurisdictional issues
raised. Id. We credit as true all evidence favoring
the nonmovant and draw all reasonable inferences and resolve
any doubts in the nonmovant's favor. Id. at 228.
The standard of review for a jurisdictional plea or motion
based on evidence "mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c)."
Id. The movant must present conclusive proof that
the trial court lacks subject matter jurisdiction.
Id. If the movant discharges its burden to establish
that the trial court lacks jurisdiction, the nonmovant must
present evidence sufficient to raise a material issue of fact
regarding jurisdiction, or the plea will be sustained.
Harris County's Plea to the Jurisdiction
challenges the trial court's grant of Harris County's
plea in three issues. We begin by addressing Annab's
third issue as our resolution of that broad issue resolves
all issues raised on appeal. In her third issue, Annab
contends the trial court erred because Harris County failed
to conclusively establish the trial court lacked
jurisdiction. Harris County challenged the trial court's
jurisdiction based on Annab's pleadings and the existence
of jurisdictional facts.
relies on Section 101.021(2) of the TTCA in contending Harris
County's sovereign immunity is waived. Section 101.021(2)
provides a waiver of sovereign immunity for "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(2) (West 2011). In the trial court, Harris
County argued: (1) Annab alleged an intentional tort which
was excluded under the TTCA; (2) the TTCA does not recognize
a claim for negligent entrustment, hiring, or supervision;
and (3) sovereign immunity was not waived because Caplan was
not within the scope of his employment at the time he
committed the tort. On appeal, Harris County also contends
the trial court lacked jurisdiction as Annab did not allege a
"use" of the tangible personal property under
Section 101.021(2). See id. Harris County
had the burden to conclusively prove the trial court's