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Texas Department of Criminal Justice v. Rangel

Court of Appeals of Texas, First District

June 28, 2018


          On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2015-64114

          Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.


          Sherry Radack Chief Justice

         In this appeal, we consider whether the Texas Tort Claims Act[1] [TTCA] permits an inmate to sue the Texas Department of Criminal Justice ["TDCJ"] for injuries he sustained when a prison guard used a tear gas gun to disperse two groups of inmates who were threatening to fight and refusing to return to their cells for the night. Specifically, we consider whether (1) furnishing the gun and gas shells to the prison guard was a negligent "use" of tangible personal property under the TTCA, (2) application of the TTCA is precluded because the prison guard's act was alleged to be an intentional tort, or (3) the emergency and riot exceptions to the TTCA's limited waiver of immunity apply. We affirm the trial court's denial of TDCJ's plea to the jurisdiction.


         On May 19, 2015, at 10:30 p.m., several inmates at Lychner State Jail refused to return to their bunks, or "rack up," for the night. TDCJ requested a supervisor, and Lieutenant Cody Waller, a TDCJ prison guard, responded and ordered the inmates to "rack up," which they did at that time.

         Approximately 30 minutes later, Waller was again called to the dormitory because the inmates were refusing to return to their bunks for a count. When Waller arrived again, two groups of 13 inmates each were engaged in a verbal altercation and were threatening to fight. Waller and a sergeant ordered the inmates to return to their bunks, but the inmates refused to do so. Waller then requested that the sergeant retrieve a 37-mm gas gun and a video camera as a show of force. While waiting for the camera, the inmates began making aggressive gestures to one another, such as striking their closed fists against the palms of their hands.

         The sergeant retrieved a video camera, 37-mm gas gun, and two rounds of gas from the armory. The two rounds of ammunition were different. One was longer, had the word "smokeless" written on it, and the rest of the writing on it was faded. The second round was shorter in length.

         Once the guards had the gun and camera, the inmates became less aggressive, but continued threatening one another verbally. One inmate said, "You might as well bust the gas because as soon as you leave, we gonna fight. Otherwise you will have to stand here between us all night. We ain't gonna rack up otherwise."

         Waller handed the gas gun and ammunition to the sergeant and went to speak to the duty warden to obtain authorization to use the gas gun. Waller and the duty warden discussed the issue for 15 to 20 minutes. The duty warden told Waller to give the inmates two verbal orders to comply and authorized the use of the gas gun if the offenders still refused to rack up.

         As Waller was walking back to the dormitory, he loaded the longer of the two shells in the gun. He used the longer "skat shell" in the gun rather than the shorter "muzzle blast shell."

         Back in the dormitory, Waller gave four separate orders for the inmates to return to their assigned bunks or he would disperse the chemical agents. One group of inmates refused to comply with each order. Waller then fired the gas canister into the group of inmates who were refusing to comply with orders. The "skat round" that was in the 37-mm gas gun hit Rangel, causing burns and a fractured hand.

         TDCJ later determined that Waller had inadvertently used the "skat round," which was designated for outdoor use only. TDCJ found that "[a]lthough the inappropriate round was used, chemical agents were necessary to prevent a major disturbance and imminent bodily harm to staff and offenders."

         Rangel filed suit against both Waller and TDCJ. Rangel's Second Amended Petition alleges that TDCJ is liable for (1) dispensing the outdoor-only skat shell for use in handling an indoor situation, (2) labeling the skat shell improperly because the writing on it was smeared and faded, and (3) authorizing Waller to use the gun without questioning Waller's choice of chemical-agent munition. Rangel also filed "excessive force" claims against Waller, the sergeant, and the duty warden under 42 U.S.C. § 1983.

         TDCJ filed a plea to the jurisdiction, alleging that, because Rangel's claims arose from an alleged use of excessive force, an intentional tort, his pleadings did not state a claim against TDCJ for which sovereign immunity has been waived under the TTCA. Rangel responded to the plea to the jurisdiction, alleging that TDCJ's negligent use of personal property caused his damages, that the intentional-tort exception to the limited waiver of sovereign immunity did not apply because TDCJ's negligence in furnishing the skat shell combined with Waller's excessive use of force to cause his injuries, and that the emergency and riot exceptions to the limited waiver of sovereign immunity presented a fact question for a jury.

         The trial court denied TDCJ's plea to the jurisdiction and this interlocutory appeal followed.[2]


         In several related issues on appeal, TDCJ contends that the TTCA does not waive sovereign immunity in this case because there was no "use" of tangible personal property. Specifically, TDCJ contends that providing the ammunition and gun to the prison guard and authorizing the use of the gun over the telephone was not a "use" of tangible personal property. TDCJ also contends that, even if there was a "use" of tangible personal property, there was no waiver of sovereign immunity because the prison guard who fired the skat round was either (1) responding to an "emergency situation, civil disobedience, or riot" or (2) committing an intentional tort. We address each contention respectively.

         Standard of Review

         A plea to the jurisdiction based on governmental immunity challenges a trial court's subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). An appeal may be taken from an interlocutory order granting or denying a plea to the jurisdiction filed by a governmental unit. Tex. Civ. Prac. & Rem. Code ยง 51.014(a)(8) (West Supp. 2017). We review de novo the ...

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