Texas Department of Criminal Justice v. Cesar Rangel

IN THE SUPREME COURT OF TEXAS
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No. 18-0721
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TEXAS DEPARTMENT OF CRIMINAL JUSTICE, PETITIONER,
v.

CESAR RANGEL, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
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Argued November 6, 2019

JUSTICE LEHRMANN delivered the opinion of the Court.

The Texas Tort Claims Act waives governmental immunity as to claims for personal injury

proximately caused by a governmental unit’s use of tangible personal property, but the waiver

does not apply in certain situations. In this case, a Texas Department of Criminal Justice prison

guard fired a skat shell at a group of inmates in a prison dormitory, injuring the plaintiff.

Department officials had authorized and instructed the guard to use the tear-gas gun and shell in

response to two groups of inmates who had threatened each other and refused to comply with

orders from multiple prison officials for almost an hour. On appeal of the trial court’s denial of

the Department’s plea to the jurisdiction, we are asked to determine (1) whether a governmental

unit “uses” tangible personal property by authorizing and instructing its use for a given purpose

and (2) whether, in these circumstances and at this procedural juncture, one or more of the Tort
Claims Act’s exceptions for riots, emergencies, and intentional torts bar a claim for which the Act

would otherwise waive immunity. The court of appeals answered yes to the first question and no

to the second. While we agree that the Department “used” tangible personal property by

authorizing and instructing the prison guard to use it for a given purpose, we hold that the riot

exception applies and, therefore, that the Tort Claims Act does not waive the Department’s

immunity for the plaintiff’s claims against it. Accordingly, we reverse the court of appeals’

judgment and dismiss the claims for lack of jurisdiction.

I. Background

The Texas Department of Criminal Justice runs The Pam Lychner State Jail in Humble,

Texas. At approximately 10:30 p.m. on May 19, 2015, a group of about thirty inmates in a jail

dormitory refused to “rack up”—or proceed to their beds for the nightly inmate count—after

Department officials ordered them to do so. One of the officers in the dormitory requested a

supervisor to assist with the situation. Lieutenant Cody Waller, the highest-ranking security officer

in the facility, and three other Department employees responded. Waller ordered the inmates to

rack up, and they complied. Waller and the other Department employees who responded to the

call then returned to their regular duties.

Approximately thirty minutes later, twenty-six inmates left their bunks and refused to

return to them. The inmates divided into two groups (“Group A” and “Group B”) that were at

odds with each other, and each group consisted of thirteen inmates who positioned themselves on

opposite sides of the dormitory. One of the officers in the dormitory called for a supervisor again,

and Waller and three other Department employees responded to the call. When they arrived, the

two groups of inmates were yelling profanity at and threatening each other. Waller and another

2
Department employee ordered the inmates to return to their assigned bunks, but the inmates

refused to comply and continued to yell at and threaten each other.

In response, Waller ordered another Department employee, Sergeant Robert McLaughlin,

to retrieve a camera and, as a show of force to gain compliance, a 37mm tear-gas gun. At that

time, Waller did not intend to fire the tear-gas gun, knowing that he could not fire it without first

“making a call to the Duty Warden to obtain the authorization to use it.” McLaughlin went to the

Department’s armory and requested a 37mm tear-gas gun, which another Department employee

issued. Although McLaughlin did not request a specific type of munition, the armory issued two

shells: a “muzzle-blast” round that discharges a puff of gas and a “skat shell” that launches five

pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty

meters.

While the muzzle-blast round could be used indoors, the skat shell was designed for

outdoor use only, as the Department notes that the skat shell has “fire producing capabilities” and

its product description states that “[s]erious injury or death may occur if the [shell] is misused.”

As a result, Department policy required that all skat shells be labeled clearly to warn employees to

use those shells only outdoors. However, the warning label on the skat shell issued to McLaughlin

had been smeared off.

While McLaughlin retrieved the tear-gas gun and shells, the inmates grew more unruly.

Waller’s incident report noted that the inmates became more aggressive towards each other,

striking their closed fists into the palms of their hands and continuing to verbally threaten each

other. When McLaughlin returned with the tear-gas gun and a camera, the inmates became less

aggressive but continued to threaten each other, shouting that they should “handle this right now.”

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One inmate reportedly yelled that the inmates would not rack up and that the guards might as well

fire the shells because, as soon as the guards left, the inmates would fight. Waller again ordered

the inmates to rack up, but the inmates still refused to comply.

Waller then left the dormitory to seek authorization to use the tear-gas gun on the inmates,

temporarily handing over the gun and shells to Sergeant Reginald Murray. The Department’s Use

of Force plan states that “[t]he highest-ranking shift supervisor on duty shall decide if a chemical

agent shall be used to gain compliance.” That person was Duty Warden Major Bridgette Hayes.

Waller called Hayes, and the two discussed the incident for approximately fifteen to twenty

minutes. Hayes ultimately authorized and instructed Waller to use the tear-gas gun and shells if

the inmates refused to comply after two more orders. Waller testified that, if an officer has

“authorization to use the [37mm tear-gas gun], it is implied that munition is going to be used with

it.”

After Hayes authorized Waller’s use, Waller returned to the area outside the dormitory

shortly after 11:20 p.m. The inmates had continued to threaten each other in Waller’s absence.

Once Waller arrived at the area outside the dormitory, he reclaimed the tear-gas gun and shells

from Murray and loaded the skat shell into the tear-gas gun. After turning on the camera to

document his next actions, he stated that he would give two orders and, if the inmates still refused

to comply, he would shoot the tear-gas gun. He and a few other Department employees entered

the dormitory, where several other employees were standing. The two groups of inmates stood on

opposite sides of the room, having still not returned to their bunks.

Waller gave his first order for the inmates to return to their bunks and warned that, if the

inmates did not comply, he would use the tear-gas gun and shells to gain compliance. The other

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Department employees in the dormitory then repeated the order, yelling “Rack it up!” several

times. At that point, most of the Group B inmates returned to their bunks, but the Group A inmates

did not. Waller then approached the Group A inmates, and they moved away from the door. As

the Group A inmates moved towards the dormitory’s bathroom, the other Department employees

continued to yell “Rack it up!” Waller ordered the Group A inmates a second time to rack up, but

they did not.

Waller then approached the noncomplying inmates. He gave two more orders to rack up,

but again the inmates did not comply. Waller then raised the weapon and fired. The skat shell hit

one of the inmates, Cesar Rangel, in his chest and hand. As the smoke spread throughout the

dormitory, the Department employees ordered the inmates to lie down on the ground, and they

complied. After the gas in the dormitory cleared, the Department employees placed the Group A

inmates in hand restraints and escorted them out of the dormitory. Rangel suffered burns and a

fractured hand as a result of the incident.

The Department conducted an internal use-of-force review that “revealed several mistakes”

as to how the incident was handled, noting that the skat shell was “designed for outdoor areas”

only and “that chemical agents should have been administered through the door rather than in the

middle of the housing area.” Following the review, the Department disciplined Waller for his

actions, placing him on administrative leave for ten months.

Rangel filed suit against the Department. 1 In his live petition, Rangel alleged that the

Department is liable for breaching its duty to Rangel by “(i) dispensing the skat shell in response

1
Rangel also named McLaughlin, Murray, and Waller as defendants, asserting excessive force claims under
42 U.S.C. § 1983 against each. The trial court granted summary judgment in favor of McLaughlin and Murray,

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to an indoor situation, (ii) keeping the skat shell in a defective, unlabeled condition, and

(iii) approving Lt. Waller’s use of force.” The Department filed a plea to the jurisdiction, no-

evidence motion for summary judgment, and traditional motion for summary judgment. In each

of those pleadings, the Department asserted that its sovereign immunity had not been waived for

Rangel’s claims against the Department. Rangel filed a joint response, asserting that the

Department’s negligent use of the tear-gas gun and skat shell caused his damages, that the Tort

Claims Act’s intentional-tort exception did not apply because it was the Department’s actions—

not Waller’s—that were the subject of Rangel’s negligence claim against the Department, and that

a fact question existed as to whether the Act’s emergency and riot exceptions applied to bar his

claims. The trial court denied the Department’s plea to the jurisdiction, and the Department filed

an interlocutory appeal. 2

The court of appeals affirmed. 581 S.W.3d 313, 324 (Tex. App.—Houston [1st Dist.]

2018). The court first held that, under section 101.021 of the Tort Claims Act, the Department

“used” the tear-gas gun and skat shell because it “furnished tangible personal property that, when

used for the specific purposed intended, caused Rangel’s injury.” Id. at 320. As such, the court

held that Rangel alleged a claim for which the Act waives the Department’s immunity, absent any

applicable exception to that waiver. 3 Id.

dismissing the claims against them with prejudice. The record does not reflect the status of Rangel’s claim against
Waller, but that claim is not at issue here.
2
As the court of appeals noted, the record reflects that the trial court did not rule on the Department’s no-
evidence and traditional motions for summary judgment. 581 S.W.3d 313, 316 n.2 (Tex. App.—Houston [1st Dist.]
2018). Thus, those motions were not the subject of the Department’s interlocutory appeal and are not subject to our
review here.
3
Because it concluded that Rangel alleged a use of tangible personal property that waived the Department’s
immunity under section 101.021(2) of the Tort Claims Act, the court of appeals declined to address “whether Rangel
also alleged a defective condition of personal property or a failure by [the Department] to follow policy.” Id. at 320.

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The court of appeals then concluded that none of the Tort Claims Act’s exceptions to a

waiver of immunity apply. Id. at 321, 324. The court examined three potential exceptions asserted

by the Department: (1) the intentional-tort exception under section 101.057(2); (2) the riot

exception under section 101.057(1); and (3) the emergency exception under section 101.055(2). 4

The court concluded that the intentional-tort exception does not apply because the Department’s

alleged act “is distinct from the intentional tort pleaded” against Waller, as the Department’s

negligence in providing and ordering the use of the tear-gas gun and shell was distinct from

Waller’s alleged excessive force. Id. at 321. As to the riot and emergency exceptions, the court

concluded that “there is a disputed, material fact regarding the jurisdictional issue of whether an

emergency or riot existed at the time of Rangel’s injury.” Id. at 323. The court explained that,

while the evidence shows that the two groups of inmates refused to return to their bunks, engaged

in an extended verbal altercation, threatened to fight each other, and failed to comply with orders

even when warned of a potential chemical discharge, the record also indicated that Waller and

Hayes spent fifteen to twenty minutes discussing the situation, that none of the inmates committed

an act of violence towards each other or Department employees, and that a factfinder watching the

video of the incident could reasonably conclude that no emergency or riot took place. Id. at 323–

Because we agree with the court of appeals’ conclusion on the waiver’s “use” prong, we likewise decline to address
the “condition” prong.
4
The intentional-tort exception provides that the Act does not waive a governmental unit’s immunity for a
claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” TEX. CIV. PRAC. & REM.
CODE § 101.057(2). The riot exception provides that the Act does not waive a governmental unit’s immunity for a
claim “based on an injury or death connected with any act or omission arising out of . . . riot.” Id. § 101.057(1). And
the emergency exception provides that the Act does not waive a governmental unit’s immunity for a claim arising:
from the action of an employee while responding to an emergency call or reacting to an emergency
situation if the action is in compliance with the laws and ordinances applicable to emergency action,
or in the absence of such a law or ordinance, if the action is not taken with conscious indifference
or reckless disregard for the safety of others . . . .
Id. § 101.055(2).

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24. The court thus concluded that “the evidence presented does not prove the existence of an

emergency or a riot as a matter of law” but instead raises a “disputed jurisdictional fact issue” for

the factfinder to resolve. Id. at 324.

Having determined that the Department failed to conclusively demonstrate any of the Act’s

exceptions to a waiver of immunity, the court of appeals held that the trial court did not err in

denying the Department’s plea to the jurisdiction. Id. We then granted the Department’s petition

for review.

II. Standard of Review

Sovereign immunity implicates a trial court’s subject matter jurisdiction and “thus is

properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction “may challenge the pleadings, the

existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d

755, 770 (Tex. 2018). If a plea “challenges the pleadings, we determine if the pleader has alleged

facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133

S.W.3d at 226. In determining whether the plaintiff has met that burden, “we liberally construe

the pleadings, taking all factual assertions as true and looking to [the plaintiff’s] intent.” City of

Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015).

But when a plea to the jurisdiction challenges the existence of jurisdictional facts, we look

beyond the pleadings and consider evidence submitted by the parties “when necessary to resolve

the jurisdictional issues raised,” even if the evidence implicates both the court’s jurisdiction and

the merits of a claim. Miranda, 133 S.W.3d at 227. For a plea that challenges the existence of

jurisdictional facts, our standard of review generally mirrors that of a traditional summary

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judgment: a plaintiff must raise a genuine issue of material fact to overcome the challenge to the

trial court’s jurisdiction. Id. at 221, 228. In determining whether the plaintiff has met that burden,

“we take as true all evidence favorable to” the plaintiff and “indulge every reasonable inference

and resolve any doubts in the [plaintiff’s] favor.” Id. at 228. If the evidence and allegations create

a fact question regarding jurisdiction, then a court cannot grant a plea to the jurisdiction, and the

factfinder must resolve the fact issue. Id. at 227–28. But “if the relevant evidence is undisputed

or fails to raise a fact question on the jurisdictional issue,” a court rules “on the plea to the

jurisdiction as a matter of law.” Id. at 228.

III. Discussion

A. Use of Tangible Personal Property

We first determine whether Rangel asserted a claim for which the Act waives the

Department’s immunity, at least absent any applicable exceptions. A governmental unit may be

sued if the Legislature has waived its immunity with clear and unambiguous language. Harris

County v. Annab, 547 S.W.3d 609, 613 (Tex. 2018). Under the Tort Claims Act’s immunity

waiver, a governmental unit can be liable for certain injuries proximately caused by the

“negligence or a wrongful act or omission of an officer or employee acting within the scope of his

employment.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex.

2019). As relevant here, the waiver encompasses claims for “personal injury . . . so caused by

a . . . use of tangible personal or real property if the governmental unit would, were it a private

person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE

§ 101.021(2).

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In examining what constitutes “use” of tangible personal property for purposes of the

Act’s waiver, we have held that a governmental unit “does not ‘use’ personal property merely by

allowing someone else to use it and nothing more.” Annab, 547 S.W.3d at 613 (quoting San

Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)). Instead, relying on the plain

and ordinary meaning of the words the Legislature chose, we have held that a governmental unit

“uses” tangible personal property if it puts or brings the property into action or service, or employs

the property for or applies it to a given purpose. McKenzie, 578 S.W.3d at 513; Annab, 547 S.W.3d

at 613; Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016). Further, the

government’s use of the property “must have actually caused the injury.” Sampson, 500 S.W.3d

at 388–89 (quoting Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001)).

The parties dispute whether the Department “used” tangible personal property under

section 101.021(2). Rangel argues that, by providing, authorizing, and instructing Waller to use

the tear-gas gun and skat shell for a given purpose, the Department used the tear-gas gun and skat

shell under section 101.021(2). The Department disagrees, arguing that verbal authorization is not

a use of property.

We agree with the court of appeals that the Department “used” the tear-gas gun and skat

shell when Hayes authorized and instructed Waller to use them to address the incident in the prison

dormitory. As the court noted, Department employees “gave the prison guard the [tear-gas] gun

and skat shell for the express purpose of using it to control the situation with the inmates.” 581

S.W.3d at 318. In doing so, the Department did not simply make available the tear-gas gun and

skat shell to Waller; rather, the Department “put” the tear-gas gun and skat shell into “action or

service” and “employ[ed]” them for the “given purpose” of addressing the incident with the

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inmates. Annab, 547 S.W.3d at 613 (citation omitted). Where, as here, a governmental unit

authorizes or orders an employee to use tangible personal property for a specific purpose, that

governmental unit has “used” the tangible personal property for purposes of the Act’s waiver.

This understanding of “use” comports with our longstanding interpretation of the term.

Again, we have interpreted “use” to include employing tangible personal property for a given

purpose or putting it into service or action. See, e.g., Cowan, 128 S.W.3d at 246 (noting that “since

1973 we have consistently defined ‘use’ to mean ‘to put or bring into action or service; to employ

for or apply to a given purpose’”) (quotation omitted). By authorizing and ordering Waller to use

the tear-gas gun and skat shell, Hayes (and, through her, the Department) did just what we have

long held to constitute “use”: the Department employed the tear-gas gun and skat shell for a given

purpose, or put the tear-gas gun and skat shell into service or action. This is also consistent with

precedent from several courts of appeals holding that, by ordering the use of tangible personal

property for a given purpose, a governmental unit’s employee has “used” the property under

section 101.021. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 151

(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“By giving Jones the drug and directing her

to take it for the purposes of quitting smoking and conducting its study, UTMDA put the drug into

service and employed it for a given purpose as those concepts are commonly understood.”), cited

in McKenzie, 578 S.W.3d at 515–16; Tex. State Tech. Coll. v. Beavers, 218 S.W.3d 258, 267 (Tex.

App.—Texarkana 2007, no pet.) (noting that a governmental unit “uses” tangible personal property

when it “negligently equips the property,” “puts it into service for use by another with full

knowledge of its intended use,” and “instructs the manner of its use”).

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Further, holding that the Department’s actions constitute “use” of tangible personal

property comports with the plain language of the statute. We have interpreted “use” under

section 101.021 as a “common, everyday word[].” PHI, Inc. v. Tex. Juvenile Justice Dep’t, ___

S.W.3d ___, ___ (Tex. 2019). As such, our interpretation of “use” is consistent with the ordinary

meaning of the word. Compare id. (defining “use” as “to put or bring into action or service; to

employ for or apply to a given purpose”), with Use, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003) (defining “use” as “to put into action or service” and “employ”).

And, as we have noted, the ordinary meaning of “use” includes to “employ,” which means “to

make use of” or “to use or engage the services of.” Employ, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003). Thus, the plain meaning of “use” does not necessarily require

physical manipulation of an object. See Tex. Dep’t of Criminal Justice v. Campos, 384 S.W.3d

810, 815 (Tex. 2012) (indicating that “[u]sing . . . cameras for surveillance,” as opposed to merely

deciding where to place the cameras for future use, constitutes “use” under the Act because doing

so “put[s] or bring[s] them into service or employ[s] or appl[ies] them to a given purpose”).

The Act’s distinction between “use” and “operation” further supports this understanding

of “use.” See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (waiving sovereign immunity with

respect to injuries arising from the “operation or use” of a motor vehicle). While we have

interpreted “operation” to mean “a doing or performing of a practical work,” we have understood

“use” as having a broader definition—again, “to put or bring into action or service; to employ for

or apply to a given purpose.” PHI, __ S.W.3d at ___ (emphasis added). Thus, because the

Department employed the tear-gas gun and skat shell for a given purpose, it has “used” the property

under section 101.021(2).

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The Department argues that our analysis in Annab forecloses the conclusion that the

Department “used” the tear-gas gun and skat shell here. In Annab, a deputy constable shot the

plaintiff, who sued the county that employed the constable. 547 S.W.3d at 611. The plaintiff

argued that the county used the tangible personal property (the firearm) when the constable shot

the plaintiff. Id. As we noted in that case, the plaintiff in effect alleged that the county’s “use” of

tangible personal property stemmed from its making “the firearm available to” the deputy

constable by providing general authorization for his use of the firearm. Id. at 613. On those facts,

we held that the plaintiff’s allegation that the county generally “enabled, authorized, or approved

[the deputy constable’s] use of the firearm [did] not amount to an allegation that the county used

the firearm.” Id.

But Annab is readily distinguishable from this case. Critically, in Annab, the county gave

no instruction or order to the deputy constable regarding the use of the firearm during the incident

in which the plaintiff was injured. Instead, the county simply “made the firearm available” to the

deputy constable by generally approving its use. Id. Here, by contrast, the Department authorized

Waller to use the tear-gas gun and skat shell specifically in response to the incident in the

dormitory. Further, while the deputy constable in Annab was off duty at the time he shot the

plaintiff and fired his personal firearm, id. at 611, here Waller was on duty and shot a weapon

provided by the Department to respond to a particular situation. In sum, here, the governmental

unit put the property into service and employed it for a given purpose; in Annab, the governmental

unit did neither. Id. Thus, the Department “used” tangible personal property under section

101.021(2).

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B. Riot Exception

Although Rangel’s claims against the Department fall within the scope of section

101.021(2)’s immunity waiver, the Department also argues that several of the Act’s exceptions to

the waiver apply. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006) (noting

that the Act provides a few exceptions “in which its waiver provisions do not apply”). We hold

that the evidence conclusively demonstrates the applicability of one of those exceptions—the so-

called riot exception—and that the Department is thus entitled to dismissal.5

Under the riot exception, the Act’s immunity waiver does not apply to a claim “based on

an injury or death connected with any act or omission arising out of civil disobedience, riot,

insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Where allegations and

evidence, when taken in the light most favorable to the nonmovant, do not create a fact issue as to

the existence of a riot, we may determine whether the riot exception applies as a matter of law.

See Miranda, 133 S.W.3d at 228.

The parties dispute whether a riot existed here. Rangel argues that the circumstances did

not constitute a riot under the ordinary meaning of the term. Further, Rangel asserts that, even if

the circumstances could constitute a riot, a factual dispute remains as to whether there was a riot,

thereby requiring that the factfinder resolve the issue. The Department disagrees with both of

Rangel’s arguments, contending that the undisputed jurisdictional facts establish a riot as a matter

of law.

Resolution of this issue turns on the meaning of “riot.” The Act does not define what

constitutes a riot, so we interpret the term according to its ordinary meaning, see TEX. GOV’T CODE

5
We need not and do not decide whether the emergency and intentional-tort exceptions apply.

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§ 312.002, as we have done for other undefined terms in the Act, PHI, ___ S.W.3d at ___

(interpreting “use” and “operation” in the Act according to their ordinary meanings). We typically

“look first to dictionary definitions” to “determine a term’s common, ordinary meaning.” Fort

Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). Black’s Law Dictionary

defines “riot” as an “unlawful disturbance of the peace by an assemblage of usu[ally] three or more

persons acting with a common purpose in a violent or tumultuous manner that threatens or

terrorizes the public or an institution.” Riot, BLACK’S LAW DICTIONARY (11th ed. 2019).

Similarly, Webster’s Dictionary defines “riot” as “a tumultuous disturbance of the public peace by

three or more persons assembled together and acting with a common intent.” Riot, MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).

To determine a term’s ordinary meaning, we may also “consider the term’s usage in other

statutes, court decisions, and similar authorities.” Tex. State Bd. of Exam’rs of Marriage & Family

Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017). To that end, the Penal Code

provides its own definition of “riot” in making it a criminal offense to knowingly participate in

one. TEX. PENAL CODE § 42.02. 6 The Department urges us to utilize that definition here.

However, Rangel argues that the Penal Code should not guide our analysis, as the Tort Claims Act

6
Section 42.02 of the Penal Code provides:
(a) For the purpose of this section, “riot” means the assemblage of seven or more persons resulting
in conduct which:
(1) creates an immediate danger of damage to property or injury to persons;
(2) substantially obstructs law enforcement or other governmental functions or services;
or
(3) by force, threat of force, or physical action deprives any person of a legal right or
disturbs any person in the enjoyment of a legal right.
(b) A person commits an offense if he knowingly participates in a riot.
TEX. PENAL CODE § 42.02(a)–(b).

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does not reference the Penal Code and section 42.02 states that its definition is “[f]or the purpose

of this section.” Id. (emphasis added). The court of appeals agreed with Rangel, noting that “[t]he

legislature could have incorporated the Penal Code’s definition of ‘riot’ by reference, or it could

have added those words of the definition to the [Act], but it did not.” 581 S.W.3d at 322 n.4.

While we agree that the Act does not expressly import the Penal Code’s definition of

“riot,” that definition does provide us guidance insofar as it is consistent with the term’s ordinary

meaning. We have noted that the purpose of the riot exception is, in part, to exclude liability for

any injuries occurring as a result of law enforcement efforts to control riots. State v. Terrell, 588

S.W.2d 784, 786–87 (Tex. 1979). In determining whether circumstances constitute a riot, law

enforcement officials necessarily rely on the Penal Code’s definition. Thus, in line with the riot

exception’s purpose, the Act precludes a waiver of sovereign immunity when a law enforcement

official responds to a “riot”—again, at least as far as the Penal Code’s definition is consistent with

the ordinary meaning of the term. See id.

The Penal Code defines “riot” in part as “the assemblage of seven or more persons

resulting in conduct” that “creates an immediate danger of damage to property or injury to

persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition comports with the

ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events

but also the immediate danger that those events present to people nearby and to law enforcement

officials’ ability to respond to that danger. Thus, taken together, the dictionary definitions and

Penal Code indicate that, under section 101.057(1), a riot is a disturbance of the peace by an

assemblage of seven or more persons acting with a common purpose in a tumultuous manner that

16
immediately threatens or terrorizes the public or an institution. Determining whether a riot exists

necessarily requires examining the totality of the facts and circumstances.

The Department argues that, rather than focusing on the ordinary meaning of the term, we

must accord deference to prison officials in determining whether a riot exists. But the Department

points to no statutory authorization for such deference. In construing a statute, we “first look to

the statute’s plain language,” and “[i]f that language is unambiguous, we interpret the statute

according to its plain meaning.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). We

“may not impose [our] own judicial meaning on a statute by adding words not contained in the

statute’s language,” and we presume that “the Legislature purposefully omitted words it did not

include.” Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019); Tarrant Reg’l Water Dist.

v. Johnson, 572 S.W.3d 658, 665 (Tex. 2019) (“But no court, including this one, can alter or

augment statutory text by announcing tests to aid the application of the statute.”). Here, nothing

in the plain language of section 101.057(1) indicates that our understanding of what constitutes a

riot defers to a prison official’s judgment. “Had the Legislature intended to” allow such deference

to prison officials, “it could have easily added language to that effect,” but it did not. Lippincott,

462 S.W.3d at 509. In the absence of any statutory authorization of such deference, we determine

whether there is a riot as it is understood according to its ordinary meaning. Silguero, 579 S.W.3d

at 59; PHI, ___ S.W.3d at ___.

Based on the “undisputed evidence of jurisdictional facts,” Miranda, 133 S.W.3d at 226,

the circumstances here constituted a “riot” as a matter of law. To be clear, an inmate’s

noncompliance with official orders, by itself, does not necessarily constitute a riot. Nor do threats

between inmates necessarily constitute a riot. But the facts here go beyond noncompliance and

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threats. Both groups of inmates refused to return to their bunks for almost an hour despite

Department employees explicitly ordering them dozens of times over that span to rack up. Inmates

from each group threatened each other throughout this time, yelling at each other, making violent

gestures to each other, and stating that, regardless of whether they racked up, there would be a

fight between the groups. The groups each consisted of thirteen inmates, resulting in multiple calls

for backup. As an interim step, Waller and other Department employees displayed the 37mm

tear-gas gun as a show of force for over thirty minutes. After being authorized and instructed to

use the tear-gas gun, Waller also warned the inmates that he would fire it if they refused to comply,

ordering them to return to their bunks four more times before firing. Meanwhile, the other

Department officials in the dormitory repeatedly ordered the inmates to rack up. Despite those

measures, the inmates still did not comply and continued to threaten each other. Taken together,

the facts amount to a riot. 7 And as no evidence raises a material question as to these facts, we hold

that, based on the totality of circumstances, a riot existed as a matter of law.

Rangel argues that the circumstances here did not constitute a riot because of the length

of time during which the events unfolded. Rangel asserts that the protracted nature of the incident

afforded the Department employees time to deliberate, as evidenced by Hayes’s and Waller’s

discussion before she authorized the tear-gas gun’s use. But the duration of an event does not

necessarily undermine whether there is an immediate threat. Here, tensions generally continued

to heighten in the prison dormitory for almost an hour, with the inmates—grouped into opposing

factions of thirteen members each—continuously making threats against each other. Despite

dozens of orders by Department employees, the inmates refused to return to their bunks and

7
We note that, here, the Department used non-lethal means to respond to the riot.

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continued to threaten each other. Thus, the riot persisted and even escalated throughout that time,

and Waller and Hayes deliberated on how to respond. The time spent deliberating, while the riot

was occurring, is not evidence that the Department was no longer responding to one.

Because Rangel has failed to provide any proof that would “raise a fact question on the

jurisdictional issue” of whether there was a riot, we conclude that the riot exception applies as a

matter of law. Miranda, 113 S.W.3d at 228. Accordingly, the Tort Claims Act does not waive the

Department’s immunity.

IV. Conclusion

Although under the Tort Claims Act the Department used the tear-gas gun and skat shell

when it authorized and instructed Waller to use them for a given purpose, we hold that the Act’s

riot exception applies as a matter of law and forecloses waiver of the Department’s immunity.

Accordingly, we reverse the court of appeals’ judgment and dismiss Rangel’s claims against the

Department for lack of jurisdiction.

________________________________
Debra H. Lehrmann
Justice

OPINION DELIVERED: February 7, 2020

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