Texas Department of Criminal Justice v. San Juanita R. Garza, Individually, and as Representative of the Estate of Adolfo Garza, Deceased; And Deborah Marquez, as Next Friend of K.J.G., A.G., Jr., and J.A.G., Minors

Opinion filed September 19, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00026- CV
__________

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant
V.
SAN JUANITA R. GARZA, INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE ESTATE OF ADOLFO GARZA,
DECEASED; AND DEBORAH MARQUEZ, AS NEXT FRIEND
OF K.J.G., A.G., JR., AND J.A.G., MINORS, Appellees

On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 025102

MEMORANDUM OPINION
This cause arises from the trial court’s denial of Appellant Texas Department
of Criminal Justice’s (TDCJ) combined plea to the jurisdiction and motion to dismiss
under Rule 91a of the Texas Rules of Civil Procedure. By two issues, Appellant
argues that the trial court erred by denying its plea to the jurisdiction because:
(1) “Appellees failed to demonstrate a waiver of sovereign immunity under the
Texas Tort Claims Act”; and (2) “[t]he district court lacked jurisdiction over
Appellees[’] claims against [Appellant] because the claims were time-barred.” By
a third issue, Appellant argues that the trial court erred by denying its Rule 91a
motion to dismiss because “[Appellant] retains Eleventh Amendment immunity to
suit and Appellees[’] claims under 42 U.S.C. [§] 1983 are jurisdictionally bared.”
We reverse and render.
Factual and Procedural History
According to Appellees’ live pleading, Adolfo Garza was an inmate in the
French Robertson Unit of TDCJ, housed in solitary confinement, when he ingested
ethanol and subsequently passed away. Appellees claimed that Appellant was
vicariously liable for negligently causing Adolfo’s death vis-à-vis the Texas Tort
Claims Act and 42 U.S.C. § 1983 because an unnamed guard “suppl[ied] [Adolfo]
with ethanol and/or fail[ed] to remove the ethanol from his solitary confinement
space.” Appellant filed a combined plea to the jurisdiction and 91a motion to
dismiss. In its plea to the jurisdiction, Appellant argued that (1) Appellees’ claims,
as pleaded, did not support a waiver of immunity; and (2) Appellees’ failure to timely
serve Appellant before the statute of limitations lapsed precluded a waiver of
immunity. In its 91a motion to dismiss, Appellant argued that it retained immunity
from Appellees’ Section 1983 claim under the Eleventh Amendment to the United
States Constitution. Appellees responded, arguing that (1) Appellant’s immunity
was waived by Appellees’ pleadings under the Texas Tort Claims Act; (2) Appellees
timely filed the suit, exercised diligence in serving Appellant, and provided pre-suit
notice of their claims; and (3) Appellant’s 91a motion was untimely because the trial

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court had not ruled on it within forty-five days of its filing. The trial court denied
Appellant’s combined motion in its entirety without providing its basis for doing so.
Standard of Review & Applicable Law
A. Sovereign Immunity
“Sovereign immunity protects the State of Texas and its agencies and
subdivisions from suit and liability.” PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d
296, 301 (Tex. 2019). “Immunity from liability is an affirmative defense, while
immunity from suit deprives a court of subject matter jurisdiction.” Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Appellant, as a
governmental unit, enjoys sovereign immunity. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(3) (West 2019); Miranda, 133 S.W.3d at 225–26; Strode v. Tex.
Dep’t of Crim. Just., 261 S.W.3d 387, 390 (Tex. App.—Texarkana 2008, no pet.).
However, the State may waive its immunity by consenting to the suit or through
legislation. Miranda, 133 S.W.3d at 224.
B. Texas Tort Claims Act
In this case, the claims that Appellees have asserted against Appellant arise
under the Texas Tort Claims Act (TTCA). Section 101.021 of the TTCA provides
a limited waiver of immunity in narrowly defined circumstances. In this case,
Appellees claim that sovereign immunity is waived because the complained-of
injuries were proximately caused by the negligent “condition or use of tangible
personal . . . property” by the governmental unit or its employees. CIV. PRAC. &
REM. § 101.021(2); see also Dall. Cnty. Mental Health & Mental Retardation v.
Bossley, 968 S.W.2d 339, 341–43 (Tex. 1998); Tex. Dep’t of Crim. Just. v. Miller,
51 S.W.3d 583, 587 (Tex. 2001).

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“[T]o state a ‘use’ of tangible personal property claim under the Tort Claims
Act, the injury must be contemporaneous with the use of the tangible personal
property—‘[u]sing that property must have actually caused the injury.’” Sampson v.
Univ. of Tex. at Austin, 500 S.W.3d 380, 388–89 (Tex. 2016) (quoting Miller, 51
S.W.3d at 588). A governmental unit “does not ‘use’ tangible personal
property . . . within the meaning of [§] 101.021(2) by merely providing, furnishing,
or allowing . . . access to it.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 98 (Tex.
2012). As for whether tangible personal property constitutes a “condition” under
the TTCA, “the [T]TCA waives immunity for an inherently dangerous condition of
tangible personal property only if the condition poses a hazard when the property is
put to its intended and ordinary use.” Id. at 99; Dall. Cnty. v. Posey, 290 S.W.3d
869, 872 (Tex. 2009). The mere nonuse of tangible personal property is not
actionable under the TTCA. Miller, 51 S.W.3d at 587–89; Bossley, 968 S.W.2d at
340–43.
C. 42 U.S.C. § 1983
Section 1983 permits an individual whose rights, privileges, or immunities
have been deprived under color of law to seek redress against the infringing party.
42 U.S.C. § 1983. However, the Eleventh Amendment to the United States
Constitution bars such suits against a state and its subdivisions unless the state has
waived immunity or Congress exercises its power under the Fourteenth Amendment
to override that immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66
(1989); see U.S. CONST. amends. XI, XIV, § 5. Congress has not exercised its power
to override immunity to a section 1983 claim. See Will, 491 U.S. at 66. Likewise,
the Texas legislature has not waived such immunity. Tex. A & M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007).

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D. Plea to the Jurisdiction
Before a court may decide a case, it is essential that the court possess subject-
matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.
2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to
challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a trial court
has subject-matter jurisdiction over a case is a question of law that we review de
novo. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Miranda,
133 S.W.3d at 226); Ector Cnty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—
Eastland 2004, no pet.).
The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action
without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction can
take two forms: (1) a challenge to the plaintiff’s pleadings regarding the allegations
of jurisdictional facts or (2) an evidentiary challenge to the existence of jurisdictional
facts. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);
Miranda, 133 S.W.3d at 226–27; City of Merkel v. Copeland, 561 S.W.3d 720, 723
(Tex. App.—Eastland 2018, pet. denied).
When the plea only challenges the plaintiffs’ pleadings, as in the case before
us, we must determine if the pleader has alleged facts that affirmatively demonstrate
the trial court’s jurisdiction to hear and decide the case; in this regard, the plaintiffs
bear the burden to allege such facts that affirmatively demonstrate the trial court’s
subject-matter jurisdiction. Tex. Dep’t of Crim. Just. v. Rangel, 595 S.W.3d 198,
205 (Tex. 2020); Miranda, 133 S.W.3d at 226. Therefore, we must accept as true
all factual allegations in the plaintiffs’ pleadings, construe them liberally in the
pleaders’ favor, and look to the pleaders’ intent. Klumb v. Hous. Mun. Emps.
Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015); Cnty. of Cameron v. Brown, 80 S.W.3d
549, 555 (Tex. 2002); Tex. Mun. League Intergovernmental Risk Pool v. City of

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Abilene, 551 S.W.3d 337, 342–43 (Tex. App.—Eastland 2018, pet. dism’d). If the
allegations create a fact question regarding jurisdiction, a trial court may not grant
the plea because the factfinder must resolve the fact issue. Tex. Ass’n of Sch. Bds.
Risk Mgmt. Fund v. Colorado Indep. Sch. Dist., 660 S.W.3d 767, 771 (Tex. App.—
Eastland 2023, no pet.). But if the pleader fails to raise a fact question on the
jurisdictional issue, the trial court may rule on the plea as a matter of law. Id.
E. Rule 91a Motion to Dismiss
Rule 91a of the Texas Rules of Civil Procedure permits a party to seek
dismissal of a suit if the suit “has no basis in law or fact.” TEX. R. CIV. P. 91a.1. A
91a motion must state that it is sought under Rule 91a, identify each cause of action
to which it is addressed, and state specifically the reasons the cause of actions has
no basis in law or fact. Id. R. 91a.2. A 91a motion must be filed within sixty days
of service of the pleading containing the challenged cause of action and twenty-one
days before a hearing on the motion, and the motion must be granted or denied within
forty-five days after the motion is filed. Id. R. 91a.3. However, the forty-five-day
ruling requirement is not jurisdictional in that a trial court’s failure to timely rule
does not prohibit it from ruling altogether. See Reaves v. City of Corpus Christi, 518
S.W.3d 594, 603 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.); Koenig v.
Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied); Walker v.
Owens, 492 S.W.3d 787, 791 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(finding that the trial court’s failure to rule within forty-five days was harmless
error). A 91a motion is an appropriate avenue to seek dismissal for want of
jurisdiction based on sovereign immunity. See City of Dall. v. Sanchez, 494 S.W.3d
722, 724–25 (Tex. 2016). “We review the merits of a Rule 91a motion de novo.”
San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021).

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Analysis
Because Appellant’s plea to the jurisdiction challenged Appellees’ pleadings,
rather than the jurisdictional facts, we accept Appellees’ pleadings as true for the
purposes of assessing immunity. See Klumb, 458 S.W.3d at 8. As such, we consider
whether an unnamed guard providing Adolfo with or leaving for his access ethanol,
in violation of Appellant’s own training policies, leading to his death results in a
waiver of immunity under either the TTCA or Section 1983. See id.
A. Texas Tort Claims Act—No “condition or use”
The facts alleged by Appellees are significantly similar to the facts alleged in
Black. See 392 S.W.3d at 91. In Black, a psychiatric patient in a state hospital was
found unconscious with a plastic bag over his head and later determined to have died
by asphyxiation. Id. The Supreme Court of Texas considered whether the State’s
immunity was waived by the hospital providing or failing to prohibit access to the
plastic bag, despite its own policy classifying the plastic bag as dangerous in an
inpatient psychiatric setting. Id. at 98. The court determined that “[n]either
providing nor prohibiting access to the bag was a ‘use’” as contemplated by the
TTCA. Id. The court further determined that the plastic bag was not a “condition”
because the TTCA waives immunity “for an inherently dangerous condition of
tangible personal property only if the condition poses a hazard when the property is
put to its intended and ordinary use, which the plastic bag was not.” Id. at 99.
(emphasis added). This was true despite the hospital’s own policy that considered
the plastic bag dangerous. Id.
The reasoning in Black compels us to reach the same result here. Even if an
unnamed guard provided Adolfo with or failed to prohibit him from having ethanol
as alleged, it does not constitute a “use” of the ethanol. See id. at 98. Similarly, the
ethanol would not constitute an inherently dangerous condition because it does not

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pose a hazard when put to its intended and ordinary use. See id. at 99; Posey, 290
S.W.3d at 871–72 (finding no “condition or use” of tangible personal property and
thus no waiver of immunity where inmate used phone cord to hang himself despite
jails knowledge of similar past incidents); San Antonio State Hosp. v. Cowan, 128
S.W.3d 244, 245–47 (Tex. 2004) (finding no “use” of tangible personal property and
thus no waiver of immunity where State hospital allowed patient to possess
suspenders and a walker, which he used to commit suicide). Accordingly, we
conclude that the TTCA does not waive immunity as pleaded by Appellees and the
trial court erred by denying Appellant’s plea to the jurisdiction. Appellant’s first
issue is sustained.
B. Section 1983 – No waiver immunity of the Eleventh Amendment
The trial court similarly erred by denying Appellant’s 91a motion to dismiss.
See Sanchez, 494 S.W.3d at 724–25. As noted, the United States Congress has not
overridden, nor has the Texas legislature waived, immunity for claims brought under
42 U.S.C. § 1983. See Will, 491 U.S. at 66; Koseoglu, 233 S.W.3d at 839.
Accordingly, TDCJ, as an arm of the State, is entitled to immunity from Appellees’
Section 1983 claim. See Will, 491 U.S. at 66; Koseoglu, 233 S.W.3d at 839. Because
Appellant retains immunity from Appellees’ Section 1983 claim, the trial court
lacked jurisdiction. See Will, 491 U.S. at 66; Koseoglu, 233 S.W.3d at 839.
Appellant’s third issue is sustained.
Because we sustained Appellant’s first and third issues, there is no need to,
and we do not address its second issue, which argues that the trial court lacked
jurisdiction because Appellant was not timely served with suit through its executive
director. See TEX. R. APP. P. 47.4 (directing memorandum opinions be “no longer
than necessary to advise the parties of the court’s decision and the basic reasons for
it”).

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This Court’s Ruling
We reverse the judgment of the trial court and render judgment dismissing
Appellees’ claims.

W. BRUCE WILLIAMS
JUSTICE

September 19, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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