Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 141st District Court Tarrant County, Texas
Trial Court No. 141-294259-17.
Sudderth, C.J.; Bassel and Wallach, JJ.
Sudderth, Chief Justice.
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. 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").
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.
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.
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. Green acknowledged that he had not brought
a failure-to-train claim. The trial court denied Tarrant
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,  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
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).
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.
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