IN THE TENTH COURT OF APPEALS
No. 10-09-00065-CV
ARTURO SOLIS, Appellant v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. C10-07-37258
MEMORANDUM OPINION
Arturo Solis appeals the trial court‖s granting the Texas Department of Criminal
Justice – Institutional Division‖s plea to the jurisdiction and dismissing his lawsuit with
prejudice against refiling. Solis filed suit against TDCJ pursuant to the Texas Tort
Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2) (Vernon 2005). Solis
contended that an employee at the prison gave him a contaminated razor with which he
was forced to use to shave, resulting in his contracting at least two illnesses, hepatitis C
and herpes. TDCJ filed a plea to the jurisdiction and motion to dismiss based on
sovereign immunity. Because we find that the trial court did not err in granting the plea to the jurisdiction and dismissing with prejudice to refiling, we affirm the
judgment of the trial court.
Waiver of Sovereign Immunity
Solis complains that the trial court abused its discretion in dismissing his case for
failure to establish a waiver of sovereign immunity in his pleadings. “Absent an
express waiver of its sovereign immunity, the State is generally immune from suit.”
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). That immunity deprives the courts of
subject matter jurisdiction over suits against the state or its subdivisions. State v.
Shumake, 199 S.W.3d 279, 283 (Tex. 2006). Because subject matter jurisdiction presents a
question of law, we review the trial court's decision to grant a plea to the jurisdiction de
novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
In reviewing a plea to the jurisdiction, we review the pleadings and any evidence
relevant to the jurisdictional issue. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583,
587 (Tex. 2001). The party suing the governmental entity must establish the State's
consent, which may be alleged either by reference to a statute or to express legislative
permission. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). In considering
the jurisdictional allegations contained in a petition, they are to be construed liberally in
the plaintiff's favor. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993).
The Texas Tort Claims Act provides a limited waiver of sovereign immunity
when personal injury is “caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to the
Solis v. TDCJ Page 2 claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)
(Vernon 2005). To sue the State for a tort, the pleadings must state a claim under the
Act. Jones, 8 S.W.3d at 639.
Condition
A governmental unit may waive immunity under the “condition” of tangible
personal property portion of section 101.021(2) if it provides equipment that is defective
because it lacks an integral safety component. See, e.g., Robinson v. Cent. Tex. MHMR
Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (swimming attire provided by state not containing
life preserver lacked integral safety component, and this condition of tangible personal
property triggered waiver of immunity); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300
(Tex. 1976) (football uniform provided by university without knee brace lacked integral
safety component, and this condition of tangible personal property triggered waiver of
immunity); Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (hospital
bed provided by hospital without bed rails lacked integral safety component, and this
condition of tangible personal property triggered waiver of immunity); Hampton v.
Univ. of Tex.--M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 631 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) (hospital bed provided by hospital with bed rails that were not
activated by hospital lacked integral safety component, and this condition of tangible
personal property triggered waiver of immunity); Tex. Dep't of MHMR v. McClain, 947
S.W.2d 694, 697 (Tex. App.—Austin 1997, writ denied) (lockers and wheelchair
provided by hospital lacked integral safety component, and these conditions of tangible
personal property triggered waiver of immunity); McBride v. Tex. Dep't of Criminal
Solis v. TDCJ Page 3 Justice, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.) (barrel provided by prison
without handles lacked integral safety component, and this condition of tangible
personal property triggered a waiver of immunity). Solis makes no contention in his
pleadings that there was any integral safety component missing from the contaminated
razor.
Further, to the extent Solis alleges that the razor was unsterile or contaminated
and led to his illnesses, we disagree that “condition” is such as is contemplated by the
Act. This argument in actuality is that the item merely furnished the condition that
made the injury possible and is insufficient to meet the causation requirement for
immunity to be waived. McClain v. Univ. of Tex. Health Ctr., 119 S.W.3d 4, 10-11 (citing
Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.
1998)).
Use
“Use” means “to put or bring into action or service; to employ for or apply to a
given purpose.” Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001).
“A governmental unit does not ―use‖ personal property merely by allowing someone
else to use it and nothing more. If all ―use‖ meant were ―to make available,‖ the statutory
restriction would have very little force.” San Antonio State Hosp. v. Cowan, 128 S.W.3d
244, 246 (Tex. 2004); see Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005). The
act of providing Solis with a razor to use to shave did not constitute a use of that
property within the meaning of Civil Practice and Remedies Code Section 101.021.
Johnson v.
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IN THE TENTH COURT OF APPEALS
No. 10-09-00065-CV
ARTURO SOLIS, Appellant v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. C10-07-37258
MEMORANDUM OPINION
Arturo Solis appeals the trial court‖s granting the Texas Department of Criminal
Justice – Institutional Division‖s plea to the jurisdiction and dismissing his lawsuit with
prejudice against refiling. Solis filed suit against TDCJ pursuant to the Texas Tort
Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2) (Vernon 2005). Solis
contended that an employee at the prison gave him a contaminated razor with which he
was forced to use to shave, resulting in his contracting at least two illnesses, hepatitis C
and herpes. TDCJ filed a plea to the jurisdiction and motion to dismiss based on
sovereign immunity. Because we find that the trial court did not err in granting the plea to the jurisdiction and dismissing with prejudice to refiling, we affirm the
judgment of the trial court.
Waiver of Sovereign Immunity
Solis complains that the trial court abused its discretion in dismissing his case for
failure to establish a waiver of sovereign immunity in his pleadings. “Absent an
express waiver of its sovereign immunity, the State is generally immune from suit.”
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). That immunity deprives the courts of
subject matter jurisdiction over suits against the state or its subdivisions. State v.
Shumake, 199 S.W.3d 279, 283 (Tex. 2006). Because subject matter jurisdiction presents a
question of law, we review the trial court's decision to grant a plea to the jurisdiction de
novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
In reviewing a plea to the jurisdiction, we review the pleadings and any evidence
relevant to the jurisdictional issue. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583,
587 (Tex. 2001). The party suing the governmental entity must establish the State's
consent, which may be alleged either by reference to a statute or to express legislative
permission. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). In considering
the jurisdictional allegations contained in a petition, they are to be construed liberally in
the plaintiff's favor. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993).
The Texas Tort Claims Act provides a limited waiver of sovereign immunity
when personal injury is “caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to the
Solis v. TDCJ Page 2 claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)
(Vernon 2005). To sue the State for a tort, the pleadings must state a claim under the
Act. Jones, 8 S.W.3d at 639.
Condition
A governmental unit may waive immunity under the “condition” of tangible
personal property portion of section 101.021(2) if it provides equipment that is defective
because it lacks an integral safety component. See, e.g., Robinson v. Cent. Tex. MHMR
Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (swimming attire provided by state not containing
life preserver lacked integral safety component, and this condition of tangible personal
property triggered waiver of immunity); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300
(Tex. 1976) (football uniform provided by university without knee brace lacked integral
safety component, and this condition of tangible personal property triggered waiver of
immunity); Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (hospital
bed provided by hospital without bed rails lacked integral safety component, and this
condition of tangible personal property triggered waiver of immunity); Hampton v.
Univ. of Tex.--M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 631 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) (hospital bed provided by hospital with bed rails that were not
activated by hospital lacked integral safety component, and this condition of tangible
personal property triggered waiver of immunity); Tex. Dep't of MHMR v. McClain, 947
S.W.2d 694, 697 (Tex. App.—Austin 1997, writ denied) (lockers and wheelchair
provided by hospital lacked integral safety component, and these conditions of tangible
personal property triggered waiver of immunity); McBride v. Tex. Dep't of Criminal
Solis v. TDCJ Page 3 Justice, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.) (barrel provided by prison
without handles lacked integral safety component, and this condition of tangible
personal property triggered a waiver of immunity). Solis makes no contention in his
pleadings that there was any integral safety component missing from the contaminated
razor.
Further, to the extent Solis alleges that the razor was unsterile or contaminated
and led to his illnesses, we disagree that “condition” is such as is contemplated by the
Act. This argument in actuality is that the item merely furnished the condition that
made the injury possible and is insufficient to meet the causation requirement for
immunity to be waived. McClain v. Univ. of Tex. Health Ctr., 119 S.W.3d 4, 10-11 (citing
Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.
1998)).
Use
“Use” means “to put or bring into action or service; to employ for or apply to a
given purpose.” Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001).
“A governmental unit does not ―use‖ personal property merely by allowing someone
else to use it and nothing more. If all ―use‖ meant were ―to make available,‖ the statutory
restriction would have very little force.” San Antonio State Hosp. v. Cowan, 128 S.W.3d
244, 246 (Tex. 2004); see Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005). The
act of providing Solis with a razor to use to shave did not constitute a use of that
property within the meaning of Civil Practice and Remedies Code Section 101.021.
Johnson v. Johnson County, 251 S.W.3d 107, 111 (Tex. App.—Waco 2008, pet. denied).
Solis v. TDCJ Page 4 Additionally, claims involving the failure to use, or the non-use of property, are
not within the waiver of sovereign immunity. Miller, 51 S.W.3d at 587-88. The
substance of Solis‖s argument is that TDCJ failed to properly decontaminate the razors
and the area surrounding where the razors were kept. These types of allegations are
not actionable under the Act. See McClain v. Univ. of Tex. Health Ctr., 119 S.W.3d 4, 10
(Tex. App.—Tyler 2002, pet. denied) (holding plaintiff's claims that hospital negligently
failed to use proper sterilization techniques not actionable under the Act); see also Miller,
51 S.W.3d at 587 (holding that claims involving failure to use property are not within
Act's sovereign immunity waiver). We overrule Solis‖s issue one.
Dismissal with Prejudice
Solis complains that the trial court abused its discretion by not allowing him the
opportunity to amend his pleadings rather than dismissing his case and that it was an
abuse of discretion to dismiss the case with prejudice to refiling. Ordinarily, when a
jurisdictional defect can be remedied in an amended pleading, dismissal with prejudice
is improper. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). However,
when a reasonable opportunity to amend a pleading is afforded, but the amended
pleading still does not allege facts that would constitute a waiver of immunity, the trial
court should dismiss the case with prejudice. Id.
In this case, the plea to the jurisdiction and motion to dismiss was filed more
than eight months prior to the hearing date. Solis filed a written response to the plea
within six weeks after the plea was filed. Solis amended his petition on the day of the
hearing of the plea to the jurisdiction. The trial court allowed Solis the opportunity to
Solis v. TDCJ Page 5 be present and to present evidence or argument against granting the plea to the
jurisdiction at the hearing. The order was not signed until a week after the hearing to
give Solis further opportunity to explain why his case should not be dismissed. Solis
had a reasonable opportunity to and did amend his pleadings; however, he still did not
allege facts that would constitute a waiver of immunity. The trial court did not abuse
its discretion in not allowing Solis the opportunity to amend his pleadings again or in
granting the plea to the jurisdiction with prejudice to refiling. We overrule Solis‖s
issues two and three.
Conclusion
We find that the trial court did not abuse its discretion in granting the plea to the
jurisdiction and dismissing with prejudice. We affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed December 2, 2009 [CV06]
Solis v. TDCJ Page 6