IN THE
TENTH COURT OF APPEALS
No. 10-04-00318-CV
Jeraldmain Crain,
Appellant
v.
Jack W. Markum, et al.,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. COT-01-33962
MEMORANDUM Opinion
Jeraldmain Crain appeals the dismissal of his cause of action. Crain never paid the original filing fee of $125.00. Crain also filed a motion for a reporter’s record but never paid the filing fee for that motion.
Crain filed an affidavit of indigence but the trial court determined, after a contest and a hearing, that Crain was not indigent. Tex. R. App. P. 20.1(i). Crain has not appealed the trial court’s adverse indigence determination. See In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998) (an indigent party is no longer precluded from perfecting appeal and challenging the trial court's order sustaining a contest to the party's affidavit of indigence).
After the time for perfecting an appeal from the adverse indigence determination had run, the Clerk of this Court notified Crain that the original filing fee and the motion filing fee were past due. The Clerk also warned Crain that if the fees were not paid within 10 days from the date of the letter, his appeal would be dismissed. See Tex. R. App. P. 42.3(c).
More than 10 days have passed, and Crain has not responded to the Clerk’s directive.
Thus, this appeal is dismissed. Tex. R. App. P. 42.3(c); see Gordon v. Gordon, No. 10-05-00051-CV, 2005 Tex. App. LEXIS 2576, *3 (Tex. App.—Waco March 30, 2005, no pet.).
Crain’s motion for a reporter’s record is dismissed as moot.
Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998). See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 6; Tex. Gov’t Code Ann. §§ 51.207(b) and 51.901 (Vernon Supp. 2004-2005). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. Tex. R. App. P. 2.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Appeal dismissed
Motion dismissed as moot
Opinion delivered and filed May 25, 2005
[CV06]
60;
Joy Pearce filed a wrongful death suit against the Department of Mental Health and Mental Retardation (“MHMR”), Mexia State School (the “School”), and certain employees of the School after her adult son Robert, a resident of the School, died from the ingestion of medication prescribed for Sheldon Harris, one of the defendant employees. Robert allegedly removed the medication from the pocket of Harris’s coat after Harris hung it on a hook on Robert’s bedroom door. The court denied a plea to the jurisdiction premised on sovereign immunity, which was filed by MHMR, the School, and the individual defendants other than Harris. These defendants bring this interlocutory appeal from the court’s denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2000).
BACKGROUND
According to Pearce’s petition, Harris entered Robert’s bedroom on January 18, 1997 and hung his coat on a hook on the door. He left a bottle of prescription medicine in his coat pocket. Robert found the bottle and ingested between seventy and ninety pills. He died the next day as a result of ingesting the medication.
Pearce filed suit in April 1998. She named as defendants MHMR, the School, Harris, Harris’s immediate supervisor Evelyn Thomas, and the School’s superintendent William Lowry. The Attorney General filed an answer on behalf of all the defendants except Harris. These defendants (collectively, “Appellants”) generally denied the allegations of Pearce’s suit and specifically pleaded sovereign and official immunity as affirmative defenses. Harris filed a general denial.
After the parties conducted some discovery, Appellants filed a “Plea to the Jurisdiction and Motion to Dismiss.” In this pleading, MHMR and the School assert that the Tort Claims Act does not waive their immunity from suit because Robert’s death was not caused by Harris’s “use of tangible personal or real property.” See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(2), 101.025(a) (Vernon 1997). In the prayer, Lowry and Thomas request dismissal of Pearce’s claims against them under section 101.106 of the Tort Claims Act. Id. § 101.106 (Vernon 1997). After hearing, the court denied the plea to the jurisdiction/motion to dismiss.
PROPRIETY OF APPELLANTS’ PLEA TO THE JURISDICTION
Pearce argues that a plea to the jurisdiction is not the proper vehicle by which a governmental entity raises a claim of sovereign immunity. She relies on a 1996 decision of this Court and a more recent decision from the Corpus Christi Court to support this claim. See Smith v. State, 923 S.W.2d 244 (Tex. App.—Waco 1996, writ denied) (per curiam); see also Texas Dep’t of Transp. v. Jones, 983 S.W.2d 90 (Tex. App.—Corpus Christi 1998), rev’d, 8 S.W.3d 636 (Tex. 1999) (per curiam).
In Smith, we held that “sovereign immunity may not be asserted as a jurisdictional obstacle to the trial court’s power to hear cases against governmental defendants.” Smith, 923 S.W.2d at 245 (quoting Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex. 1988)). For this reason, we reversed the court’s granting of a plea to the jurisdiction premised in part on a claim of sovereign immunity. Id. at 246. The Corpus Christi Court agreed with us in Jones and affirmed an order denying a plea to the jurisdiction premised entirely on sovereign immunity. Jones, 983 S.W.2d at 91-92.
Recently however, the Supreme Court reversed Jones and expressly disapproved of Smith. Tex.1 Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per curiam). The Court held “that immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Id. Accordingly, we conclude that MHMR and the School properly asserted their claim of immunity from suit in their plea to the jurisdiction.
By contrast however, a party may not assert immunity from liability by a plea to the jurisdiction because such immunity “does not affect a court’s jurisdiction to hear a case.” Id. at 638. Lowry and Thomas assert immunity on the basis of section 101.106 of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Section 101.106 provides:
A 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.
Id. The Supreme Court has determined that this provision makes governmental employees “immune from liability” when a plaintiff’s claims against the governmental unit by which they are employed are barred by immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998).
Lowry and Thomas improperly asserted their claims of immunity from liability by way of a plea to the jurisdiction because such immunity “does not affect a court’s jurisdiction to hear a case.” Jones, 8 S.W.3d at 638. Accordingly, we will affirm the order denying the plea to the jurisdiction as to Lowry and Thomas.
DEATH CAUSED BY USE OF TANGIBLE PERSONAL PROPERTY
MHMR and the School present a single issue on appeal questioning whether their immunity from suit has been waived by Harris’s alleged conduct. “[S]overeign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages.” Federal Sign v. Texas So. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Immunity from suit precludes a suit against the State unless the State consents by statute or legislative resolution. Id.
The legislature has waived the State’s immunity from suit in cases in which liability exists under the terms of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a). Pearce relies solely on section 101.021(2) of that act to establish the liability of MHMR and the School in this case. Id. § 101.021(2). If MHMR and the School are liable under this statute, then section 101.025(a) constitutes a legislative waiver of their immunity from suit.
When considering a jurisdictional challenge, we look only to the factual allegations of the plaintiff’s petition. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996); WISD Taxpayers Ass’n v. Waco Indep. Sch. Dist., 912 S.W.2d 392, 394 (Tex. App.—Waco 1995, no writ). A plaintiff bears the burden of alleging facts which affirmatively demonstrate that the trial court has jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex. App.—Corpus Christi 1998, pet. dism’d w.o.j.). Because MHMR and the School do not claim that Pearce’s allegations are fraudulent, we must take them as true. See Continental Coffee Prods., 937 S.W.2d at 449; City of Saginaw v. Carter, 996 S.W.2d 1, 3 (Tex. App.—Fort Worth 1999, pet. filed).
To establish liability under the Tort Claims Act, Pearce must show that Robert’s death was caused by Harris’s use of tangible personal or real property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). The Supreme Court has construed this provision to require that the “death must be proximately caused by the condition or use of tangible property.” Bossley, 968 S.W.2d at 343. To be a proximate cause, a government employee’s use of property must be “a substantial factor in bringing about the injury.” San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 35 (Tex. App.—San Antonio 1998, pet. denied); City of Waco v. Hester, 805 S.W.2d 807, 814 (Tex. App.—Waco 1990, writ denied). “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.” Bossley, 968 S.W.2d at 343 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)).
In Bossley, the plaintiffs’ son Roger was committed to a Dallas County MHMR facility after a failed suicide attempt. He surprised an MHMR technician unlocking an exterior door to go to lunch, “pushed her aside, and fled.” Id. at 340-41. He went to an interstate about one-half mile from the MHMR facility and attempted to hitchhike a ride. As MHMR personnel and police approached him on the roadside, “he leaped into the path of a truck and was killed.” Id. at 341.
The plaintiffs alleged both a use of property—the technician’s unlocking of the outer door—and a condition of property—an unlocked inner door—as causative events which waived Dallas County MHMR’s immunity. Id. at 343. The Court examined the geographic, temporal, and causal proximity of the use and condition alleged and determined that they “were too attenuated from Roger’s death to be said to have caused it.” Id. The Court concluded:
The real substance of plaintiffs’ complaint is that Roger’s death was caused, not by the condition or use of property, but by the failure of Hillside’s staff to restrain him once they learned he was still suicidal. The Tort Claims Act does not waive Dallas County MHMR’s immunity from such a complaint.
Id.
In Pearce’s case, the hook on her son’s bedroom door is similar to the unlocked door in Bossley in terms of its causal relationship to her son’s death. The substance of Pearce’s complaint is that Harris left his medicine in Robert’s bedroom. Because the same result would likely have occurred regardless of where in the room Harris left his coat (e.g., on a dresser, on a chair, or even on Robert’s bed), the hook did nothing more than furnish the condition which made the injury possible. See id.; Koehler, 981 S.W.2d at 36. Accordingly, Harris’s use of the hook cannot be said to have proximately caused Robert’s death. Id.
Pearce’s petition does not allege facts which show that Robert’s death was proximately caused by Harris’s use of the hook. Thus, she has failed to demonstrate a waiver of MHMR’s and the School’s immunity from suit under the Tort Claims Act. See Texas Ass’n of Bus., 852 S.W.2d at 446; Rubio, 980 S.W.2d at 945. Accordingly, we sustain the sole issue presented by MHMR and the School.
CONCLUSION
Lowry and Thomas improperly asserted their claim of immunity from liability in a plea to the jurisdiction. To the contrary however, MHMR and the School properly asserted their immunity from suit in the plea to the jurisdiction. Pearce’s petition fails to allege facts which demonstrate that Robert’s death was proximately caused by Harris’s use of any tangible real or personal property. Thus, her pleadings fail to affirmatively demonstrate a waiver of MHMR’s and the School’s immunity from suit under the Tort Claims Act.
For these reasons, we affirm the order denying the plea to the jurisdiction as to Lowry and Thomas. We reverse the order and render judgment that the plea to the jurisdiction is granted as to MHMR and the School.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Vance and
Justice Gray
Affirmed in part and reversed and rendered in part
Opinion delivered and filed March 29, 2000
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