IN THE
TENTH COURT OF APPEALS
No. 10-91-123-CV
        REINHOLD KNUST,
                                                                                       Appellant
        v.
        ROSEWITA BROWN,
                                                                                       Appellee
From the 170th District Court
McLennan County, Texas
Trial Court # 88-1567-4
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O P I N I O N
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          This is a child-support modification case. Reinhold Knust and Rosewita Knust, now Rosewita Brown, were divorced on January 9, 1989. The divorce decree named Reinhold the managing conservator of the parties' four minor children and appointed Rosewita the possessory conservator. Rosewita, however, was not ordered to pay child support. In December 1990, Reinhold filed a motion to modify, alleging a change of circumstances of the children or a person affected by the child-support order. See Tex. Fam. Code Ann. § 14.08 (c)(2) (Vernon Supp. 1992). The court denied his motion. We will affirm.
          The court entered the following findings of fact:
1. [Reinhold's] ability to support the children subject of this suit has not materially and substantially changed since the date of rendition of the prior Order in this cause.
2. [Reinhold's] net resources have not materially and substantially changed since the date of rendition of the prior Order in this cause.
3. [Rosewita's] inability to support the children subject of this suit has not materially and substantially changed since the date of rendition of the prior Order in this cause.
4. [Rosewita's] net resources have not materially and substantially changed since the date of rendition of the prior Order in this cause.
5. The circumstances concerning the expenses of the children subject of this suit have not materially and substantially changed since the rendition of the prior Order in this cause.
In points one, three, five, and seven, Reinhold challenges the legal sufficiency of the evidence supporting these findings. Points two, four, six, and eight are that these findings are against the great weight and preponderance of the evidence.
          The following tests will be used to resolve these complaints. A party attempting to set aside an adverse fact finding as matter of law must overcome two hurdles. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Second, if there is no evidence to support the fact-finder's answer, the entire record must then be examined to see if the contrary proposition is established as a matter of law. Id. at 690. To prevail in attacks on the legal sufficiency of evidence supporting negative findings, Reinhold must demonstrate that the evidence conclusively established all vital facts in support of an affirmative finding as a matter of law. See id.
          When the challenge is framed as an "insufficient evidence" point, we will consider all the evidence in the case to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).
          Points one and two concern the finding that there was no substantial and material change in Reinhold's financial position. Although he testified to a decrease in income from his dairy operation from 1988 to 1989 and the fear of a continuation of the decrease in milk prices, we must disregard this evidence in a legal-sufficiency review because it is contrary to the finding. Instead, we focus on the fact that testimony also revealed that the income from Reinhold's pawn shop increased $11,985 in the same years. This increase in income is some evidence that supports the finding that a substantial or material adverse change had not occurred. Accordingly, our inquiry on the legal-sufficiency point ends here. See Sterner, 767 S.W.2d at 691.
          Furthermore, an examination of all the evidence, both contrary to and in favor of the finding, reveals that the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Reinhold's dairy operation losses were more than offset by the increase in income from his pawn shop, and he claimed no reduction in rental income from numerous other properties. Points one and two are overruled.
          Reinhold's third and fourth points attack the evidence supporting the finding that the circumstances concerning the expenses of the children have not substantially and materially changed since the date of the original order. He testified to a substantial increase in the expenses, but left the statistical testimony to his house keeper. She testified that, although she helped Reinhold compile the figures that indicate a substantial increase, she could not verify the figures with any degree of accuracy.
          "Where the testimony of an interested witness is not contradicted by any other witness or attendant circumstances, and the same is clear, direct, and positive, and free from contradictions, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true as a matter of law." Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (Tex. 1942). Furthermore, the trial court is free to disbelieve the witness of the party bearing the burden of proof. Yap v. ANR Freight Systems Inc., 789 S.W.2d 424, 425 (Tex. App.âHouston [1st Dist.] 1990, no writ). Because the circumstances tend to cast suspicion on this testimony, Reinhold has not established a substantial and material change in the children's expenses as a matter of law. See Cochran, 166 S.W.2d at 908.
          Considering the whole record, the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Therefore, points three and four are overruled.
          Points five and six relate to the finding that Rosewita's net resources and ability to support the children have not substantially and materially changed. Her uncontradicted testimony was that she has not been employed since the date of the prior order. She testified that her only business venture was a complete failure that divested her of all of her property settlement from the divorce and that her only income is an annual $10,0000 payment she receives under a settlement agreement with Reinhold. The payment was a part of the agreement incident to the divorce and is referred to in the divorce decree. Therefore, no substantial or material change has occurred because of that payment. Rosewita's testimony of her unemployment, failed business venture, and lack of any favorable change in income is evidence that supports the finding that there has been no substantial and material change in her financial condition. Consequently, our inquiry ends on the matter-of-law challenge. See Sterner, 767 S.W.2d at 691.
          Moreover, this finding was not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Points five and six are overruled.
          The seventh and eight points are legal and factual-sufficiency challenges to the trial court's global findings that no substantial or material changes occurred with respect to any of the three situations that would justify a modification of support. We overrule points seven and eight for the reasons stated in our discussion of points one through six.
          Reinhold also argues, in general, that the court abused its discretion when it failed to modify the original child-support order. See Tex. Fam. Code Ann. § 14.08(c)(2) (Vernon Supp. 1992). An abuse of discretion occurs when the court's decision is arbitrary or unreasonable. Pratt v. Texas Department of Human Resources, 614 S.W.2d 490, 494 (Tex. Civ. App.âAmarillo 1981, writ ref'd n.r.e.). An appellate court, however, cannot simply substitute its own judgement for that of the trial court. Id. After a careful review of the record, we find that the court's actions were not arbitrary or unreasonable. See id. Accordingly, Reinhold's contention is without merit.
          Point nine, which Reinhold conceded need not be considered unless we rule affirmatively on one his of first eight points, is not reached. The judgement is affirmed.
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                                                                                 BOB L. THOMAS
                                                                                 Chief Justice
Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed February 19, 1992
Do not publish
S.W.3d at 640; Dallas County MHMR v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998); accord Snelling v. Mims, 97 S.W.3d 646, 648 (Tex. App.Waco 2002, no pet.); see also Escalante, 251 S.W.3d at 727 (Âimmunity defenseÂ[4]); Klein v. Hernandez, 260 S.W.3d 1, 21 (Tex. App.ÂHouston [1st Dist.] 2008, pet. granted) (Taft, J., concurring). Several intermediate courts of appeal have characterized this statutory immunity as immunity from suit. See Saade v. Villarreal, 280 S.W.3d 511, 521 (Tex. App.ÂHouston [14th Dist.] 2009, pet. filed); Bailey v. Sanders, 261 S.W.3d 153, 157 (Tex. App.ÂSan Antonio 2008, no pet.); Tex. DepÂt of Agric. v. Calderon, 221 S.W.3d 918, 922 (Tex. App.ÂCorpus Christi 2007, no pet.); Meroney v. City of Colleyville, 200 S.W.3d 707, 715 (Tex. App.ÂFort Worth 2006, pet. granted, judgmÂt vacated w.r.m.); City of San Angelo Fire DepÂt v. Hudson, 179 S.W.3d 695, 703 n.7 (Tex. App.ÂAustin 2005, no pet.).
           We will follow the plain language of the Supreme CourtÂs decisions in Sykes and Bossley and in our own decision in Snelling and treat the statutory immunity conferred by section 101.106 as immunity from liability.
           Â[I]mmunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).  Therefore, the immunity conferred by section 101.106 is not jurisdictional. An order granting a motion to dismiss under section 101.106(e) cannot be appealed under section 51.014(a)(8) of the Civil Practice and Remedies Code. See Simons, 140 S.W.3d at 349; Autry, 251 S.W.3d at 159-60.
           Accordingly, we dismiss JonesÂs first, third and fourth issues for want of jurisdiction. See Matis v. Golden, 228 S.W.3d 301, 305 (Tex. App.ÂWaco 2007, no pet.).
Plea to the Jurisdiction
           Jones contends in his second issue that the court abused its discretion by granting the plea to the jurisdiction without first reviewing his petition and the proceedings to determine in which capacity the individual appellees were sued. In particular, he claims that the court erred by failing to consider Âthe totality of the complaint. He argues that his Âcomplaint alleged fact[s] that affirmatively demonstrated the district courtÂs jurisdiction.Â
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Section 1983
           We begin with JonesÂs federal claims under section 1983, which establishes liability for:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.
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42 U.S.C.S. § 1983 (LexisNexis 2002). Â[N]either a State nor its officials acting in their official capacities are Âpersons under § 1983. Will v. Mich. DepÂt of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989).
           Thus, the court properly granted the plea to the jurisdiction on JonesÂs federal claims against TDCJ and against Quarterman, McGilbra, Hunter and Brisher in their official capacities.[5] McLane Co. v. Strayhorn, 148 S.W.3d 644, 652 (Tex. App.ÂAustin 2004, pet. denied); Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex. App.ÂTexarkana 2003, no pet.).
State Law Claims
           When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has alleged facts that affirmatively demonstrate the trial courtÂs jurisdiction to hear the cause. We construe the pleadings liberally in favor of the plaintiff and look to his intent. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
           Jones claims that Smith and Emertson: (1) Ânegligently used handcuffs on [him] Âby using physical force sadisticly [sic] maliciously and wantonly which amounted to assault, battery, and cruel unusual treatmentÂ; and (2) committed civil theft under Chapter 134 of the Civil Practice and Remedies Code by taking his property without due process and Âmay have acted under eminent domain.Â
           Jones alleges that Quarterman, Hunter and Brisher violated his right to due process by failing to discipline Smith and Emertson. He alleges that these three defendants and McGilbra violated his right to due process by failing to provide him a meaningful grievance procedure, and by failing to enforce TDCJ policies regarding treatment of inmates.
           Jones alleges that TDCJ is liable for negligently: (1) permitting Smith and Emertson to handcuff him and march him through the prison unit naked; (2) permitting Smith and Emertson to lock him in solitary confinement while still handcuffed without providing for his basic necessities; and (3) permitting the other defendants to engage in the conduct alleged in the previous paragraph.
           Under section 101.021(2)[6] of the Texas Tort Claims Act, Jones can establish a waiver of immunity from suit and liability only by establishing that he sustained personal injury proximately caused by Âa condition or 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 Ann. § 101.021(2) (Vernon 2005). JonesÂs claims do not allege any injury caused by a condition of property. Thus, we focus on whether he has alleged that his injuries were proximately caused by a defendantÂs use of tangible personal property.
           JonesÂs state law claims all flow from his complaints regarding his alleged treatment by Smith and Emertson. To the extent Jones alleges that they Ânegligently used handcuffs on [him] Âby using physical force sadisticly maliciously and wantonly which amounted to assault, battery, and cruel unusual treatment, he has alleged an intentional tort. See Tex. DepÂt of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001);   Cameron County v. Ortega, 291 S.W.3d 495, 498-99 (Tex. App.ÂCorpus Christi 2009, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 337-38 (Tex. App.ÂDallas 2004, no pet.); City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.ÂSan Antonio 1990, writ denied). The Texas Tort Claims Act does not waive immunity from suit for intentional torts. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (Vernon 2005); Petta, 44 S.W.3d at 580; Ortega, 291 S.W.3d at 497-98; Rivera, 146 S.W.3d at 338; Dunn, 796 S.W.2d at 261.
           To the extent Jones alleges that the handcuffs were used to restrain him in solitary confinement without basic necessities, the use of handcuffs was not a proximate cause of any injuries allegedly sustained in solitary confinement.[7] See Hardin County SheriffÂs DepÂt v. Smith, 290 S.W.3d 550, 553-54 (Tex. App.ÂBeaumont 2009, no pet.); Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex. App.ÂEl Paso 2005, no pet.); see also Bossley, 968 S.W.2d at 343 (ÂProperty does not cause injury if it does no more than furnish the condition that makes the injury possible.Â).
           JonesÂs theft claim plainly does not allege a personal injury. Assuming without deciding that it constitutes an allegation of property damage, such facts do not allege a claim for which immunity has been waived under section 101.021(2), which provides a waiver of immunity only for Âpersonal injury and death. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
           JonesÂs state law claims against Quarterman, McGilbra, Hunter and Brisher do not allege any use of property on their part which proximately caused him injury. However, these claims may be characterized as the negligent implementation on their part of TDCJ policies regarding grievance procedures and the treatment of inmates. Â[A] plaintiff has to state a waiver of immunity under some provision of section 101.021 of the Civil Practice and Remedies Code before she can invoke a claim of negligent implementation of policy. Rivera, 146 S.W.3d at 338; see Petta, 44 S.W.3d at 580-81; Ordonez, 224 S.W.3d at 245. Because Jones has failed to plead facts which would constitute a waiver of immunity under section 101.021(2), he has failed to plead facts constituting a waiver of the immunity from suit of Quarterman, McGilbra, Hunter and Brisher.
           Because Jones has failed to plead facts waiving any of the individual defendants immunity from suit, he has failed to plead facts waiving TDCJÂs immunity from suit. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995); Moncada v. Brown, 202 S.W.3d 794, 803 (Tex. App.ÂSan Antonio 2006, no pet.); Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.ÂTexarkana 2004, pet. denied).
           The trial court properly granted the plea to the jurisdiction. We overrule JonesÂs second issue and do not reach his fifth issue. See Tex. R. App. P. 47.1 (courtÂs opinion must address Âevery issued raised and necessary to final disposition of the appealÂ).
We do not have jurisdiction to review the trial courtÂs interlocutory order granting the motion to dismiss under section 101.106(e). We affirm the order granting the plea to the jurisdiction.
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FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed in part, dismissed in part
Opinion delivered and filed April 14, 2010
[CV06]
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[1]              Jones alleged only the defendants last names with the exception of Quarterman. Where other first names or initials are indicated, those were obtained from the defendants pleadings.
[2] Â Â Â Â Â Â Â Â Â Â Â Â Â Based on statements Jones made at the hearing on the motion to dismiss and plea to the jurisdiction, it appears that Smith and Emertson have not been served and are no longer TDCJ employees.
[3]              The previous version of the statute provided, ÂA judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005)).
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[4] Â Â Â Â Â Â Â Â Â Â Â Â Â Â[I]mmunity from liability is an affirmative defense.ÂÂ State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
[5] Â Â Â Â Â Â Â Â Â Â Â Â Â Regarding JonesÂs complaint that the trial court failed to determine in which capacity the individual appellees were sued before granting the plea to the jurisdiction, that complaint has been rendered moot by the courtÂs ruling in its order partially granting JonesÂs motion for new trial as to his section 1983 claims against Quarterman, McGilbra, Hunter and Brisher in their individual capacities.
[6]              Jones cannot establish a waiver of immunity under subsection (1) of the statute because he does not claim that his alleged injuries Âarise[ ] from the operation or use of a motor-driven vehicle or motor-driven equipment. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2005).
[7]              From our reading of JonesÂs second amended complaint, he does not allege that the prison cell itself proximately caused his alleged injuries. Nevertheless, the same result would obtain even if he had. See Dallas County MHMR v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998); Hardin County SheriffÂs DepÂt v. Smith, 290 S.W.3d 550, 553-54 (Tex. App.ÂBeaumont 2009, no pet.); Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex. App.ÂEl Paso 2005, no pet.).