Appeal from the 80th District Court Harris County, Texas
Trial Court Case No. 2015-64114
consists of Chief Justice Radack and Justices Jennings and
Radack Chief Justice
appeal, we consider whether the Texas Tort Claims
[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.
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
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.
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
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
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.
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."
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.
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
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.
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.
trial court denied TDCJ's plea to the jurisdiction and
this interlocutory appeal followed.
OF TDCJ'S PLEA TO THE JURISDICTION
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
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 § 51.014(a)(8) (West Supp. 2017). We
review de novo the ...