Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 3 of Cameron County,
Chief Justice Contreras and Justices Longoria and Perkes
CONTRERAS CHIEF JUSTICE
Sean Kirstein appeals from a plea to the jurisdiction granted
in favor of appellee the City of South Padre Island, Texas
(the City). By one issue, Kirstein argues the trial court
erred when it granted the City's plea. We affirm.
about June 29, 2018, Kirstein was arrested for public
intoxication and taken to the City's jail. While detained
in a cell, Kirstein was attacked by fellow inmate Francisco
Ibarra. In his petition, Kirstein argued that the City's
"arresting officers and jailers knew or should have
known that due to the many prior times they had arrested Mr.
Kirstein for alcohol related offenses that he was
unpredictable and violent
'drunk' who needed to be 'observed' and
'segregated' from other prisoners to avoid harm to
Mr. Kirstein and to harm others in his close proximity"
(emphasis in original). According to Kirstein, the City was
negligent because: (1) it lacked adequate facilities for
segregating and monitoring inmates such as Ibarra and
Kirstein, (2) it failed to immediately transfer either Ibarra
or Kirstein to the Cameron County Jail where either could
have been "adequately segregated," (3) the
City's jailers "failed to follow the written
policies and procedures in place at the South Padre Island
jail for segregating drunk and aggressive inmates such
as" Ibarra and Kirstein, (4) the jailers were "not
given any 'jail detention training' at the time they
were assigned to duty as 'jailers, '" and (5)
"jailers were allowed to watch television at the
'booking desk' thereby taking their attention away
from assaults taking place in their jail." Kirstein
suffered multiple injuries as a result of Ibarra's
attack, including a broken nose, fractured eye socket,
fractured wrist, lacerations, bruising, and injuries to
spinal discs in his neck and back.
City filed a plea to the jurisdiction asserting governmental
immunity, and Kirstein filed a response in opposition. In his
response, Kirstein argued that the City's actions
violated the City's jail rules and regulations, which
required: "segregation of all potentially dangerous
inmates from the general jail population;" "to
immediately transfer either Mr. Ibarra or Mr. Kirstein to the
Cameron County Jail where either could have been adequately
segregated;" that the jailers receive training "at
the time they were assigned;" and that the jailers not
"watch television at the 'booking desk' . . .
thereby taking their attention away" from the detainees.
Kirstein further argued that the City's jail lacked
"adequate video and audio monitoring devices of jail
cells." Kirstein stated that "his claim arose out
of the antecedent negligence of the City's
employees" and that "his injuries were proximately
caused by negligent actions involving a 'condition or
use' of tangible or real property (i.e. a jail)."
trial court granted the City's plea. This appeal
Standard of Review
to the jurisdiction is a dilatory plea that seeks to dismiss
a cause for lack of subject-matter jurisdiction. Harris
County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). 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). We review
the disposition of a jurisdictional plea de novo. Suarez
v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).
The plaintiff has the burden to allege facts that
affirmatively demonstrate the trial court's jurisdiction
to hear a case. Tex. Dep't of Transp. v.
Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We construe the
pleadings liberally in favor of the plaintiff and look to the
pleader's intent. Ryder Integrated Logistics, Inc. v.
Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per
curiam). If the pleadings generate a fact question regarding
the jurisdictional issue, a court cannot sustain the plea to
the jurisdiction. Id. at 927. If jurisdictional
facts are disputed, we consider any evidence submitted by the
parties to the trial court. Blue, 34 S.W.3d at 555.
immunity defeats subject-matter jurisdiction in suits against
subdivisions of the State, such as the City, unless that
immunity has been clearly and unambiguously waived by the
Legislature. See Sykes, 136 S.W.3d at 638.
Governmental immunity encompasses both immunity from
liability and immunity from suit. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.
2004). The Texas Tort Claims Act (TTCA) waives governmental
immunity for "personal injury and death [proximately]
caused by a condition or use of tangible personal or real
property if the government 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); see Miranda, 133 S.W.3d at 224;
Jefferson County v. Farris, 569 S.W.3d 814, 823
(Tex. App.-Houston [1st Dist.] 2018, pet. filed) (per
curiam). Thus, "[t]o state a claim under the [TTCA], a
plaintiff must allege an injury resulting from the
'condition or use of tangible personal or real
property.'" Tex. Dep't of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001); see Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(2).
"Use" has been defined in the context of the TTCA
as "to put or bring into action or service; to employ
for or apply to a given purpose." Tex. Nat. Res.
Conservation Comm'n v. White, 46 S.W.3d 864, 869
(Tex. 2001); Vela v. City of McAllen, 894 S.W.2d
836, 840 (Tex. App.-Corpus Christi-Edinburg 1995, no writ).