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Tarrant County v. Green

Court of Appeals of Texas, Second District, Fort Worth

October 24, 2019

Tarrant County, Texas, Appellant
v.
Tony Lee Green, Appellee

          On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141-294259-17.

          Before Sudderth, C.J.; Bassel and Wallach, JJ.

          MEMORANDUM OPINION

          Bonnie Sudderth, Chief Justice.

         Appellee Tony Lee Green sued Appellant Tarrant County, Texas, alleging in his original petition that while he was in the Tarrant County Jail, Corporal James Davis, a sheriffs department employee, pointed a laser temperature gun directly at Green's left eye.[1] Green alleged that Corporal Davis had been acting in the course and scope of his county employment when he "negligently] use[d]" the laser temperature gun and referenced the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001(2), .002, .021. Green specifically "denie[d] and disavowed] any claim or allegation that the damages [he] suffered . . . [were] the result of any intentional tort." See id. § 101.057(2) (stating that the TTCA does not apply to a claim "arising out of assault, battery, false imprisonment, or any other intentional tort").

         Tarrant County filed a plea to the jurisdiction in which it argued that the trial court lacked subject matter jurisdiction because-among other things-Green had pleaded an intentional tort and it is immune from suit for intentional torts. See id. To its plea, Tarrant County attached a portion of Green's deposition in which, when asked whether he believed that Corporal Davis had accidentally used the laser on his eye, Green replied,

I don't think so. Again, I don't think that he intended to do me harm, but I believe that he intended to shine it at me. It was a little bit too direct and he was just way too close for it to have been an absolute accident.
. . . .
So I don't -- I -- to answer your question just dead on, no, I don't think it was an accident. I believe the injury was an accident. I don't think he intended to do it, like, to harm me.

         Green responded that Tarrant County's interpretation of the intentional-tort exception would "effectively eviscerate the Legislature's express waiver of sovereign immunity for the negligent use or misuse of tangible personal property" and was unjust and unreasonable outside the context of an arrest. Green asserted that although Corporal Davis's decision to point the laser at Green-a person not under arrest and already in custody-was intentional, a rational jury could conclude that his decision to point it at Green's eye was negligent. Green attached Corporal Davis's deposition to his response. In the deposition, Corporal Davis denied any interaction with Green that involved pointing the laser at him, but he admitted he could have pointed it in Green's direction.

         At the hearing on Tarrant County's plea, Green argued that there was no implicit battery because no intentional contact was made and that the officer did not intend to hurt him because he did not understand that the laser was hazardous.[2] Green acknowledged that he had not brought a failure-to-train claim.[3] The trial court denied Tarrant County's plea.

         In a single issue, Tarrant County brings this interlocutory appeal, arguing that the trial court erred as a matter of law by denying its plea to the jurisdiction because Corporal Davis committed an intentional tort and because Green did not allege a claim involving a condition or use of the county's tangible personal property. See id. § 51.014(a)(8). Green responds that to commit either an assault or a battery, [4] there must be an intentional act accompanied by an intent to create a harmful or offensive contact and admits that while there was an intentional act, Corporal Davis had no intent to commit a harmful or offensive contact.

         A plea to the jurisdiction challenges the trial court's authority to determine an action's subject matter. City of Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 239 (Tex. App.-Fort Worth 2018, pet. denied). Whether a trial court has subject matter jurisdiction, whether a plaintiff has alleged facts that affirmatively demonstrate that subject matter jurisdiction, and whether undisputed evidence of jurisdictional facts establishes subject matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

         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, construing the pleadings liberally in the plaintiff's favor and looking to the pleader's intent. Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Id. at 226- 27.

         If, however, 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, taking as true all evidence favorable to the nonmovant, indulging every reasonable inference, and resolving any doubts in the nonmovant's favor. Id. at 227-28. The burden is on the governmental unit as the movant to meet the standard of proof. Id. at 228 ("By requiring the state to meet the summary judgment standard of proof . . ., we protect the plaintiffs from having to 'put on their case simply to establish jurisdiction.'"). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the ...


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