James Wilkins v. Nueces County, Texas

ACCEPTED
13-14-00570-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/6/2015 3:05:28 PM
Dorian E. Ramirez
CLERK

FILED IN
13th COURT OF APPEALS
CAUSE NO. CORPUS CHRISTI/EDINBURG, TEXAS
13-14-00570-CY
11/6/2015 3:05:28 PM
DORIAN E. RAMIREZ
Clerk
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI, TEXAS

JAMES WILKINS,
Appellant
V.
NIJECES COUNTY, TEXAS,
Appellee

On Appeal from Cause No. 2013-DCV-5868-D,
In the 105th Judicial District Court of
Nueces County, Texas

APPELLEE'S BRIEF

LAURA GARZA JIMENEZ,
NUECES COUNTY ATTORNEY
BY: JENNY CRON
Assistant County Attorney
State Bar No. 00796237
JUAN J. MALDONADO, III
Assistant County Attorney
State Bar No. 24083436
901 Leopard, Room 207
Corpus Christi, TX 78401
(361) 888-0391
(361) 888-0577 (fax)
APPELLEE WAIVES ATTORNEYS FOR APPELLEE
ORAL ARGUMENT
CAUSE NO. 13-14-00570-CY

IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI, TEXAS

JAMES WILKINS
Appellant

NUECES COUNTY, TEXAS,
Appellee

On Appeal from Cause No. 2013-DCV-5868-D,
In the 105th Judicial District Court of
Nueces County, Texas

APPELLEE'S BRIEF

TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:

COMES NOW APPELLEE, NTJECES COUNTY, TEXAS, files this its Brief, and

respectfully shows:

1
IDENTITY OF PARTIES AND COUNSEL

Mr. James Wilkins, Appellant

Pro Se
TDJC: 01970009
SID: 10123934
Texas Department of Criminal Justice
Fabian Dale Dominguez State Jail
6535 Cagnon Road
San Antonio, Texas, 78252-2202
Nueces County, Texas, Appellee

Jenny Cron, Counsel for Appellee
Assistant Nueces County Attorney
State Bar No. 00785653
Juan J. Maldonado, Counsel for Appellee
Assistant Nueces County Attorney
State Bar No. 24083436
901 Leopard, Rm. 207
Corpus Christi, TX 78401
(361) 888-0391
(361) 888-0577 Facsimile

2
TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .2

TABLEOF CONTENTS .......................................................................................3,4
INDEX OF AUTHORITIES ............................................................................ 5,6,7,8
STATEMENTOF THE CASE .................................................................................9
RESPONSE TO ISSUES PRESENTED ................................................................. 10
STATEMENTOF FACTS......................................................................................11

I. Statement of Procedural History .....................................................................11,12
II. Underlying Facts (Rebuttal) .........................................................................12,13
STANDARD OF REVIEW.....................................................................................13
I. Plea to the Jurisdiction .........................................................................................13
SUMMARY OF THE ARGUMENT............................................................13,14,15
ARGUMENT..................................................................................................... 15-29
I. Plea to the Jurisdiction Pursuant to Governmental Immunity .............................15

A. Preliminary Matter.................................................................................... 15,16,17
B. Texas Tort Claims Act CPRC § 101.021 ......................................................17,18
C. Requisite Waiver of Immunity Elements under CPRC§ 101.021(1 )(A)(B) ......18
i. "Arises From" Motor-Driven Equipment & Vehicles ..................................18,19
ii. Motor-Driven Vehicle or Equipment..................................................................19
iii. Operation or Use ................................................................................................19

1
D. Requisite Waiver of Immunity Elements under CPRC §101.021(2).................20

i. Tangible Personal Property ..................................................................................20
ii. Caused By ......................................................................................................20,2 1
iii. Use of Property ..................................................................................................21
iv. Were it a Private Person .....................................................................................22
E. Application to Issues Presented .....................................................................22-29
i. Subject Mailer Jurisdiction...................................................................................22

a. CPRC §101.0121(1)(A)(B) ............................................................................22,23
b. CPRC 101.0121(2) ............................................................................................23
ii. Non-compliance to Rule of Texas Commission on Jail Standards.....................23
a.Rule 277.8 Bedding & Linens..................................................... 23,24,25
b.Rule 259.138 Holding Cells............................................................. 25,26
iii. Alleged Negligent Misrepresentation, Fraud & Forgery ..............................26,27
iv. Personal Injury .............................................................................................28,29
II. Conclusion Concerning Plea to the Jurisdiction.................................................29
PRAYER.................................................................................................................29
SIGNATUREOF COUNSEL .................................................................................30
CERTIFICATE OF COMPLIANCE ......................................................................31
CERTIFICATEOF SERVICE................................................................................32
APPENDIX.............................................................................................................33

11
INDEX OF AUTHORITIES

STATE STATUTES AND RULES

37 TEx. ADMIN. CODE §§ 251-301 (West 2015)......................................................22
37 TEx. ADMIN. CODE §297.9 (West 2015) .............................................................24
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2015)..............................17,18
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A)(B) (West 2015) ..............18,22
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2015) ............................. 23
Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2015) ........................21,26,27
Tex. R. App. P. 38.1(d) ............................................................................................9
Tex. R. App. P. 38.1(i) ............................................................................................16
Tex. R. App. P. 38.1(g) ...........................................................................................11
Tex. R. App. P. 38.2(a)(1)(B) ..............................................................................9,11

CASES

Bland-I.S.D. v. Blue,
34 S.W.3d 547 (Tex. 2000) ....................................................................................13

Boyles v. Kerr,
855 S.W.2d 593, 598 (Tex. 1993) ..........................................................................25

Cavnar v. Quality Control Parking, Inc.,
696 S.W.2d 549, 551 (Tex.1985) ...........................................................................25
City off. Richland Hills v. Friend,
370 S.W.3d 369, 372 (Tex. 2012) .....................................................................2 1,23

City of Tyler v. Likes,
962 S.W.2d 489, 494 (Tex. 1997) .....................................................................22,24
Dallas County Mental Health & Mental Retardation v. Bossley,
968 S.W.2d 339 (Tex. 1998) ...................................................................19,21,24,25

5
Dallas v. Harper,
913 S.W.2d 207 (Tex. 1995) ...................................................................................20

Duhart v. State,
610 S.W.2d 740, 741 (Tex. 1980) ..........................................................................28

Estate of Banks v. Chambers Mern'l Hosp. Auxiliary, Inc.,
865 F.2d 696 (5th Cir. 1989) ..................................................................................21

Federal Land Bank Assoc. v. Sloane,
825 S.W.2d 439 (Tex.1991) ...................................................................................29

Fed. Sign. v. Tex. S. Univ.,
951 S.W.2d 401, 409 (Tex. 1997) ..........................................................................28

Griffin v. Hawn,
161 Tex. 422, 341 S.W.2d 151, 152 (1960) ...........................................................28

Hernandez v. Hernandez,
318 S.W.3d 464, 466 (Tex.App.—E1 Paso 2010, no pet.) .....................................16

Hosner v. DeYoung,
iTex. 764, 769 (1847) ...........................................................................................28

Inpetco, Inc. v. Texas Am. Bank/Houston N.A.,
722 S.W.2d 721 (Tex. App.—Houston [14th Dist.] 1986, writ refused) ...............16

In re Kellogg Brown & Root, Inc.,
166 S.W.3d 7321 737 (Tex. 2005) ..........................................................................16
Kassen v. Hatley,
887 S.W.2d 4 (Tex. 1994) ......................................................................................19

Kaufman County v. Leggett,
396 S.W.3d 24, 28 (Tex.App.—Dallas 2012, pet. denied) ....................................17

Kerrville State Hosp. v. Clark,
923 S.W.2d 582 (Tex. 1996) .........................................................................19,21,23

Kirk v. Garza,
875 S.W.2d 24, 24 (Tex.App.—Houston [1st Dist.] 1994, writ denied) ................16
Lowe v. Harris County Hosp. Dist.,
809 S.W.2d 502, 504 (Tex. App.—Houston [14th Dist.] 1989, no writ) ...............20

Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184-85 (Tex. 1978) ......................................................................16
Missouri Pac. R.R. Co. v. Brownsville Navigation Dist.,
453 S.W.2d 812, 813-14 (Tex. 1970) .....................................................................28
Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg By & Through Lindburg,
766 S.W.2d 208 (Tex. 1989) ..................................................................................19

Russell v. Texas Department of Human Resources,
746 S.W.2d 510, 513 (Tex.App.—Texarkana 1988, writ denied) .........................21

Ryder Integrated Logistics, Inc. v. Fayette County,
453 S.W.3d 922, 927 (Tex. 2015), reWg denied (Mar. 13, 2015) .......................... 18

San Antonio State Hosp. v. Cowan,
128 S.W.3d 244, 246 (Tex.2004) ...........................................................................19

Tex. Dep 't of Grim. Justice v. Miller,
51 S.W.3d 583, 587 (Tex. 2001) ............................................................................18

Tex. Dep 't of Health v. Rocha,
102 S.W.3d 348, 353 (Tex.App.—Corpus Christi, 2002, no pet.) .........................17

Tex. Dep 't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004) .....................................................................17
Tex. Dep 't. of Pub. Safety v. Petta,
44 S.W.3d 575, 580 (Tex. 2001) .......................................................................20,26

Tex. Highway Dep 't v. Weber,
147 Tex. 628, 219 S.W.2d 70, 71 (1949) ...............................................................28

Tex. Nat Res. Gonserv. Comm 'n v. White,
46 S.W.3d 864, 868 (Tex.2001) ........................................................................19,24

TRST Corpus, Inc. v. Financial Center,
9 S.W.3d 316 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) .....................13

7
Union Pump Co. v. Allbritton,
898 S.W.3d 773, 776 (Tex. 1995) ................................................................2 1,24,25

Univ. of Tex. MD. Anderson Or. v. King,
417 S.W.3d 1,4 (Tex.App.—Houston [14th Dist.] 2013, no pet.) ...................21,23

Univ. of Tex. Med. Branch at Galveston v. York,
871 S.W.2d 175, 179 (Tex. 1994) ......................................................................20,26

Walton v. Tex. Dep 't of Crim. Justice,
No. 13-07-00656-CV, 2008 WL 3868113 at *1 (Tex.App.—Corpus Christi Aug.
21, 2008, pet. denied) .............................................................................................27

W.D. Hat/en Co. v. Dodgen,
158 Tex. 74, 308 S.W.2d 838, 840 (1958) .............................................................28

Wheeler v. Green,
157 S.W.3d 439,444 (Tex.2005) ...........................................................................16

Wise Reg '1 Health Sys. v. Brittain,
268 S.W.3d 799, 807-08 (Tex.App.—Fort Worth 2008, no pet.) ..........................21

E.
STATEMENT OF THE CASE

Appellee is dissatisfied with Appellant's statement of the case because it is

unsupported by record references and discusses the facts. Tex. R. App. P. 38.1(d).

Appellee offers the following statement of the case pursuant to Tex. R. App. P.

38.2(a)(1)(B):

Mr. Wilkins originally sued Nueces County in district court for negligence,

gross negligence, fraud, and code violations. [CR. 102]. Defendant removed the

action to federal court based on federal question jurisdiction [CR. 102]. The

federal court dismissed all of Plaintiffs federal constitutional and statutory claims

with prejudice and remanded Plaintiffs state law causes of actions to district court.

[CR.102-107]. After, Defendant filed its Plea to the Jurisdiction and a hearing

was held wherein the district court granted Nueces County's Plea to the

Jurisdiction and dismissed all of Plaintiffs causes of action with prejudice, [RR. 1-

12], from which Mr. Wilkins appeals.

IJ
RESPONSE TO ISSUES PRESENTED

1. The trial court did not err in granting Nueces County's Plea to the

Jurisdiction as the allegations against Appellee do not fall within the scope of

waiver of governmental immunity.

2. The trial court did not en in granting Nueces County's Plea to the

Jurisdiction because the negligence allegedly committed by Appellee does not fall

within the specific scope of waiver of immunity provided by the Texas Tort Claims

Act.

3. The trial court did not en in granting Nueces County's Plea to the

Jurisdiction because the intentional tort allegedly committed by Appellee does not

fall within the specific scope of waiver of immunity provided by the Texas Tort

Claims Act.

4. The trial court did not err in granting Nueces County's Plea to the

Jurisdiction because there is no proximate causation between the acts and

omissions allegedly committed by Appellee and the Appellant's alleged injury and

therefore Appellant's claims do not fall within the specific scope of waiver of

immunity provided by the Texas Tort Claims Act.

10
STATEMENT OF FACTS

Appellee is dissatisfied with Appellant's statement of facts because it includes

pages of alleged facts and allegations not supported by record references, not

pertinent to the proper issue or point presented on appeal, and because it urges

arguments concerning the merits of Appellant's cause of action. Tex. R. App. P.

38.1(g). Accordingly, Appellee denies all of the unsupported factual allegations,

except those shown by the record. Appellee offers this statement of relevant facts for

purposes of this appeal pursuant to Tex. R. App. P. 38.2(a)(1)(B):

I. Statement of Procedural History

On November 25, 2013, Mr. Wilkins filed his Original Petition in Cause No.

2013-DCV-5868-D, James Wilkins v. Nueces County, in the 105th Judicial District

Court of Nueces County, Texas. [CR. 22-26]. The gravamen of Wilkin's petition is

that "the County of Nueces is liable for allowing myself to go without a mattress,

sheet, and blanket for the 10 (1, 3, 3, and 3) days I was made to wait in the Nueces

County holding cells." [CR. 22]. On January 6, 2014, Defendant removed this case

to federal court based on federal question jurisdiction under the Eighth Amendment's

prohibition on cruel and unusual punishment and the Fourteenth Amendment's

guarantees of procedural and substantive due process. [CR. 38-40]. On June 19,

2014, the United States District Court for the Southern District of Texas, Corpus

Christi Division, dismissed all of Plaintiffs federal constitutional and statutory

11
claims with prejudice and remanded Plaintiff's remaining claims to the 105th Judicial

District Court of Nueces County, Texas. [CR. 102-107].

On July 9, 2014, Defendant filed seventeen special exceptions to Plaintiff's

Original Petition [CR. 114-125] and on August 4, 2014, the Court entered an order

sustaining all seventeen of Defendant's special exceptions and ordered Plaintiff to

amend his Original Petition by August 14, 2014. [CR. 139-140]. On August 11,

2014, Plaintiff filed Plaint?ff's Amended Pleadings that alleges causes of action

against Defendant for negligence, gross negligence, forgery, and code violations.

[CR. 146-153]. On September 14, 2014, Plaintiff filed Plaint jff's Second Amended

Pleading superseding all of Plaintiffs prior pleadings and alleging, in singular,

negligent misrepresentation against Defendant. [CR. 184-185]. Nueces County filed

its Plea to the Jurisdiction on August 29, 2014. [CR. 173-181]. Hearing on that

motion was held on September 15, 2014, [RR. 1-12], at which time the court

dismissed the matter with prejudice for lack of subject matter jurisdiction and issued

a final order disposing of all claims against Defendant. [CR. 1931.

H. Underlying Facts (Rebuttal)

Mr. Wilkins alleges that Nueces County, Texas failed to provide him a

mattress, sheet, and a blanket for a total of 10 days on four separate instances during

his five month period of incarceration at the Nueces County jail and then, after

Wilkins complained, provided him with falsified information allegedly to cover up its

12
infractions of Texas Commission on Jail Standards policies and rules. Wilkins also

alleges that Nueces County kept him detained in a holding cell exceeding 48 hours,

in violation of Texas Commission on Jail Standards policies and rules. Nueces

County denies each and every, all and singular, allegation of Mr. Wilkins. [CR. 109-

111]. All incoming prisoners to Nueces County jail are secured into the second floor

holding cells pending completion of the intake process. [CR. 216]. Mr. Wilkins was

housed within 21 hours of arriving at the Nueces County jail. [CR. 216].

STANDARDS OF REVIEW

I. Plea to the Jurisdiction

Because the question of subject matter jurisdiction is a question of law, the

trial court's ruling on a plea to the jurisdiction is reviewed under a de novo standard

of review. TRBT Corpus, Inc. v. Financial Center, 9 S.W.3d 316, 320 (Tex. App.—

Houston [14th Dist.] 1999, pet. denied); see also Bland I.S.D. v. Blue, 34 S.W.3d 547,

551-555 (Tex. 2000).

SUMMARY OF THE ARGUMENT

The trial court did not err in granting Nueces County's Plea to the

Jurisdiction as the allegations against Appellee do not fall within the scope of

waiver of governmental immunity.

Nueces County's governmental immunity is presumed and neither

Appellant's pleadings nor the evidence on record rebut this presumption. Mr.

13
Wilkins alleges that Nueces County, Texas failed to provide him bedding and linens

for a limited period of time during his incarceration at the Nueces County jail and

that upon his complaint, Wilkins was provided with falsified information allegedly to

cover up Appellant's infractions of the Texas Commission on Jail Standards

("TCJS") policies and rules. Appellant also alleges that Appellee detained him in a

holding cell for longer than 48 hours, exceeding ThiS's policies and rules.

Albeit, the Texas Tort Claims Act ("TTCA") provides limited waiver of

governmental immunity from suit, Appellant failed to meet his burden of

affirmatively showing the trial court has subject mailer jurisdiction. Appellant did

not plead nor does the evidence on record show that Appellee caused Appellant to

sustain personal injury as a result of the operation or use of a motor-driven vehicle.

Neither does Appellant affirmatively show that Appellee proximately caused him

personal injury by a condition or use of tangible personal or real property. Texas

common law has long held that non-use of property does not fall under the waiver

provisions of the Texas Tort Claims Act. Moreover, the TTCA does not waive

governmental immunity from suit for intentional torts. Notwithstanding the

foregoing, Appellant's alleged personal injury is too remote and speculative to

opine that it proximately resulted from Appellee's alleged omissions and acts. In

regards to Appellant's allegation of being detained in a holding cell beyond 48

hours, Appellant does not plead nor does the evidence on record show that the

14
holding cell constitutes either personal or real property. Appellant fails to

affirmatively show a proximate cause between the detainment and his alleged

injury. Finally, in regards to Appellant's allegation of negligent misrepresentation,

fraud, and forgery involving the information he was provided by Appellee, the

Legislature does not waive governmental immunity for negligence involving use,

misuse, or non-use of information—and as discussed below, the TTCA does not

waive immunity for intentional torts. Texas common law has also held that

information is not personal property, even if it is reduced to writing. Thus,

Appellant failed to affirmatively show any viable causes of action against Appellee

and the trial court did not err in granting Nueces County's Flea to the Jurisdiction.

Appellee respectfully prays that this Court dismiss this appeal, uphold the

district court's grant of plea to jurisdiction, dismiss this action with prejudice, and

tax costs against Appellant.

ARGUMENT

I. Plea to the Jurisdiction Pursuant to Governmental Immunity from Suit

A. Preliminary Matter--Appellant waived all issues on appeal as a result of
procedural irregularities and amended pleading

As a preliminary matter, pro se litigants are held to the same standards

as attorneys and shall comply with the Texas Rules of Appellate Procedure

("TRAPs"). Although appellate courts construe pro se filings liberally, the courts

cannot excuse pro se litigants from complying with the TRAPs because doing so

1k
might give pro se litigants an unfair procedural advantage. Wheeler v. Green, 157

S.W.3d 439, 444 (Tex.2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-

85 (Tex. 1978). Appellate courts generally rule that inadequately briefed issues are

waived. See TRAP 38.1(i); see e.g. Hernandez v. Hernandez, 318 S.W.3d 464,

466 (Tex.App.—El Paso 2010, no pet.) (CA found that appellant waived all issues

by not presenting argument, authority or cites to record). In addition, an amended

pleading supersedes the pleading it amends, Kirk v. Garza, 875 S.W.2d 24, 24

(Tex.App.—Houston [1st Dist.] 1994, writ denied), and makes the superseded

pleadings moot. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.

2005).

The Appellee argues that the Appellant waived all issues presented in this

appeal because although Appellant's brief includes legal authorities, it does not

discuss them or apply them to the facts of this case. TRAP 38.1(i); see Inpetco,

Inc. v. Texas Am. Bank/Houston NA., 722 S.W.2d 721 (Tex. App.—Houston [14th

Dist.] 1986, writ refused). Appellee also argues that Appellant's only appealable

issue involves his "negligent misrepresentation" cause of action against Appellee

as Appellant's second and final amended pleading only includes this single cause

of action against Appellee. (CR. 184-185). Stated another way, Appellant's

second and final amended pleading supersedes all of Appellant's previous causes

of action and makes those actions moot and non-appealable. (CR. 184-185).

16
Appellee prays for the Court to dismiss all issues presented as a result of both

Appellant's procedural irregularities and Appellant's amended pleading.

Notwithstanding Appellee's request to the Court, Appellee addresses the issues

posited by Appellant in their entirety.

B. Texas Tort Claims Act CPRC §101.021

A plaintiff who sues a political subdivision under state law must establish

a waiver of sovereign or governmental immunity by (1) alleging legislative consent

to sue and (2) pleading facts that fall within the scope of legislative consent. Tex.

Dep't of Health v. Rocha, 102 S.W.3d 348, 353 (Tex.App.—Corpus Christi, 2002,

no pet.). Immunity from suit defeats a trial court's subject matter jurisdiction and

is properly asserted in a plea to the jurisdiction. Tex. Dep 't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject

matter jurisdiction and whether a plaintiff has alleged facts that affirmatively

demonstrate a trial court's subject-matter jurisdiction are questions of law. Id. at

226; Kaufman County v. Leggett, 396 S.W.3d 24, 28 (Tex.App.—Dallas 2012, pet.

denied). A governmental unit's jurisdictional plea can be based on the pleadings

or on the evidence. Id. The Texas Tort Claims Act ("TTCA") provides a limited

waiver of the government's immunity to the following set of tort claims:

(1) Property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within
his scope of employment if:

WA
(A) the property damage, personal injury, or death arises from the operation
or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to
Texas law; and,

(2) personal injury and death so 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 claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2015).

It should be noted that the mere invocation of the Texas Tort Claims Act in a

petition does not waive sovereign immunity and confer jurisdiction on the trial

court. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The

claim raised must fall within the specific scope of the waiver of immunity provided

by the Texas Tort Claims Act. Id. A court shall review the petition to ascertain the

nature of the claim raised, examine the TTCA to determine the scope of waiver of

sovereign immunity relevant to the claim, and finally consider the facts of the

claim to decide whether it comes within the scope so as to invoke jurisdiction in

the trial court. Id.

C. Requisite Waiver of Immunity Elements under CPRC §101.021(1)(A)(B)

i. "Arises from" Motor-Driven Equipment & Vehicles

Pursuant with the Legislature's preference for a limited immunity waiver,

the Texas judiciary is to strictly construe §101.021's vehicle-use requirement.

Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex.

0
2015), reh'g denied (Mar. 13, 2015). The Supreme Court of Texas has defined the

standard as a "nexus between the operation or use of the motor driven vehicle or

equipment and a plaintiff's injuries." Id. at 928.

ii. Motor-Driven Vehicle or Equipment

"Motor-driven' means, quite simply, driven by a motor." Texas Nat. Res.

Conserv. Comm 'n v. White, 46 S.W.3d 864, 868 (Tex.2001).

iii. Operation or Use

The Supreme Court of Texas has consistently defined "use" to mean "to put

or bring into action or service; to employ for or apply to a given purpose." San

Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.2004). "Therefore, to

invoke the Tort Claims Act's waiver of immunity, [Plaintiffs] injury must have

been caused by the [Defendant's] actual use of the [motor-driven vehicle], not the

[Defendant's] failure to use it." White, 46 S.W.3d at 869. "[The Supreme Court of

Texas] has never held that non-use of property can support a claim under the Texas

Tort Claims Act." Id.; see e.g. Mount Pleasant Indep. Sch. Dist. v. Estate of

Lindburg By & Through Lindburg, 766 S.W.2d 208 (Tex. 1989); Dallas County

Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998);

Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996); Kassen v. Hatley, 887

S.W.2d 4 (Tex. 1994).

19
D. Requisite Waiver of Immunity Elements under CPRC §101.021(2)

L Tangible Personal Property

The Supreme Court of Texas has long held "that information is not tangible

personal property, since it is an abstract concept that lacks corporeal, physical, or

palpable qualities." Texas Dept of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex.

2001); University of Tex. Med Branch at Galveston v. York, 871 S.W.2d 175, 179

(Tex. 1994). In Dallas v. Harper, 913 S.W.2d 207 (Tex. 1995), the Texas Supreme

Court concluded that simply reducing "information to writing on paper does not

make the information 'tangible personal property." Id citing Petta, 44 S.W.3d at

580. "Thus, while instructional manuals can be seen and touched, the Legislature

has not waived immunity for negligence involving use, misuse, or non-use of the

information they contain." Id. at 581. In fact, "it is technically possible to

characterize any imaginable action as a case involving use of tangible personalty.

Each of us deals daily with the tangible components of this material world. But

creative pleading cannot replace the rule of immunity with its exception." Lowe v.

Harris County Hosp. Dist., 809 S.W.2d 502, 504 (Tex. App.—Houston [14th

Dist.] 1989, no writ).

ii Caused By

"For this reason the statute requires that the injury be 'caused by a condition

or use' of tangible personalty, and the courts have held accordingly." Id. citing

ON
Russell v. Texas Department of Human Resources, 746 S.W.2d 510, 513

(Tex.App.—Texarkana 1988, writ denied). Indeed, "the plaintiff must allege that

the property's condition or use proximately caused the personal injury. . . ." Wise

Reg'l Health Sys. v. Brittain, 268 S.W.3d 799, 807-08 (Tex.App.—Fort Worth

2008, no pet.). "Property does not cause injury if it does no more than furnish the

condition that makes the injury possible." Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998); Union Pump Co. v.

Allbritton, 898 S.W.3d 773, 776 (Tex. 1995).

X. Use of Property

Non-use of tangible personal property does not fall under the waiver

provisions of the Texas Tort Claims Act. Clark, 923 S.W.2d at 584; City of N.

Richland Hills v. Friend, 370 S.W.3d 369, 372 (Tex. 2012); Univ. of Tex. M.D.

Anderson Ctr. v. King, 417 S.W.3d 1, 4 (Tex.App.—Houston [14th Dist.] 2013, no

pet.). In addition, the TTCA does not waive a defendant's immunity in regards to

intentional torts. Tex. Civ. Prac. & Rem. Code Aim. § 101.057 (West 2015).

Finally, it is inappropriate to allow a plaintiff to bootstrap a failure to act case into

a misuse case against the Defendant, a matter as to which, Texas retains sovereign

immunity. Estate of Banks v. Chambers Mem'l Hosp. Auxiliary, Inc., 865 F.2d 696

(5th Cir. 1989).

21
iv. Were it a Private Person

"In evaluating [the] contentions [of the defendant] it is important to

remember that the Tort Claims Act does not create a cause of action; it merely

waives sovereign immunity as a bar to a suit that would otherwise exist. Thus,

unless [the plaintiff himself] would have a claim ... under common law against a

private defendant, [the Court] need not reach the question of whether [said claim]

is a "personal injury" for which the Legislature has waived . . . sovereign

immunity." City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Under this

reasoning, it is of importance to mention that the Texas Commission on Jail

Standards does not provide for private causes of action for infractions to its policies

and rules. 37 TEX. ADMIN. CODE §§ 251-301 (West 2015).

F. Application to Issues Presented

L Subject Matter Jurisdiction

a. CPRC.S 101.021 (1) (A) (B)

In applying Texas statutory and common law to the pleadings and evidence

on record in this matter, neither the Appellant's pleadings nor the evidence on

record establish a waiver of governmental immunity under CPRC §

101.021(1)(A)(B). Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A)(B) (West

2015). Indeed, Appellant did not plead nor does the evidence show Appellant's

injury was caused by Appellee's actual use of a motor-driven vehicle. Therefore,

PAN
Appellant failed to allege facts affirmatively showing that the trial court has

subject matter jurisdiction and thus the trial court did not err in granting Appellee's

plea to jurisdiction with respect to CPRC § 101 .021(1)(A)(B).

b. CFRCt101.021(2)

In regards to CPRC § 101.021(2), Tex. Civ. Prac. & Rem. Code Ann. §

101.021(2) (West 2015), the first issue to be addressed is the failure to timely

provide bedding and linens to Appellant while he was incarcerated in Nueces

County Jail. The second issue to be addressed is the failure to remove Appellant

from a holding cell within 48 hours pursuant to rules and policies of the Texas

Commission on Jail Standards. The third issue to be addressed is the failure to

provide Appellant accurate information regarding the rules and policies of the

Texas Commission on Jail Standards. The final issue to be addressed is

Appellant's personal injury. Each issue is addressed below, respectively.

ii. Non-compliance to Rules of Texas Commission on Jail Standards

a. Rule 277.8 Bedding & Linens

The failure to provide bedding and linens does not waive governmental

immunity for a number of reasons. First, Texas common law has long held that

non-use of tangible personal property, here the bedding and linens, does not fall

under the waiver provisions of the Texas Tort Claims Act. Clark, 923 S.W.2d at

584; Friend, 370 S.W.3d at 372; King, 417 S.W.3d at 4. It would be a flagrant

23
deviation from case law precedent if it were otherwise. Indeed, broadening the

scope of CPRC § 101.021(2) to include non-use of tangible personal property

would be tantamount to abolishing governmental immunity altogether. See White,

46 S.W.3d at 868. Secondly, Appellant's alleged personal injury from the non-use

of bedding and linens is too remote and speculative to opine that it proximately

caused Appellant's personal injury. "Property does not cause injury if it does no

more than ftwnish the condition that makes the injury possible." Bossley, 968

S.W.2d at 343; Allbritton, 898 S.W.3d at 776. It is just as reasonably possible that

Appellant's mental anguish, if any, proximately resulted from his incarceration at

the County Jail and the substantial disruption it had on the Appellant's daily life

routine. Finally, governmental immunity cannot be waived for the failure to

provide bedding and linens that are required by the rules and policies of the Texas

Commission on Jail Standards ("TCJS") because the TJCS does not provide for

private causes of action for infractions to such policies. Pursuant to 37 TEX.

ADMIN. CODE § 297.9, the commission is the entity that institutes actions, "in its

own name", to enforce or enjoin the violations of its orders, rules, or procedures.

(West 2015). Thus, as the Appellant does not have a claim for himself against the

Appellee, "[the Court] need not reach the question of whether [said claim] is a

"personal injury . . . ." as governmental immunity is not waived. Likes, 962

S.W.2d 489 at 494. Even assuming arguendo that Appellee were a private person,

24
the result involving Appellee's immunity from suit, in this fact situation, remains

the same. This is because the Supreme Court of Texas holds that there is no

general duty not to negligently inflict mental anguish. Boyles v. Kerr, 855 S.W.2d

593, 598 (Tex. 1993). In so rejecting, the Supreme Court of Texas stated that

"[t]ort law cannot and should not attempt to provide redress for every instance of

rude, insensitive or distasteful behavior, even though it may result in hurt feelings,

embarrassment, or even humiliation." Id. at 601-02. Recognizing the need for an

appropriate balance, Texas common law exclusively designed recovery for mental

anguish in only those few types of cases involving injuries of such a shocking and

disturbing nature that mental anguish is a highly foreseeable result, such as cases

involving wrongful death. Id.; see Cavnar v. Quality Control Parking, Inc., 696

S.W.2d 549, 551 (Tex.1985). Thus, the trial court did not err in granting

Appellee's plea to the jurisdiction with respect to Rule 277.8 Bedding and Linens

of the Texas Commission on Jail Standards.

b. Rule 259.138 Holding Cells

Appellee incorporates the foregoing paragraph to the extent it is applicable

herein. Appellant did not plead nor does the evidence on record show that the

holding cell constitutes either personal or real property. In either case, "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; Alibritton, 898 S.W.3d at 776.

25
Here, Appellant establishes no proximate causation between being detained in a

holding cell and his alleged personal injury. Moreover, the TTCA does not waive

Appellant's immunity in regards to intentional torts, Tex. Civ. Prac. & Rem. Code

Ann. § 101.057 (West 2015), and assuming arguendo, that confinement to the

holding cell was intentional, governmental immunity is nevertheless retained.

Finally, as previously stated, the TICS does not provide for private causes of action

for infractions to its policies. Thus, given the foregoing analysis, the trial court did

not err in granting Appellee' s plea to the jurisdiction with respect to Rule 259.138

Holding Cells of the Texas Commission on Jail Standards.

iii. Alleged Negligent Misrepresentation & Fraud/Forgery

In regards to Appellant's allegation of negligent misrepresentation, fraud,

and forgery as a result of Appellee's failure to provide Appellate accurate

information regarding the rules and policies of the Texas Commission on Jail

Standards, again there are a number of reasons why governmental immunity is not

waived. First and foremost, as held by Texas common law, "information is not

tangible personal property, since it is an abstract concept that lacks corporeal,

physical, or palpable qualities." Petta, 44 S.W.3d at 580; York, 871 S.W.2d at

179. Even reducing "information to writing on paper does not make the

information 'tangible personal property." Id. citing Petta, 44 S.W.3d at 580.

Moreover, the Legislature has not waived immunity for negligence involving use,

26
misuse, or non-use of information. Id. at 581. This being designed exclusively as

the Texas statutory and common law, the "information" communicated to Appellee

unmistakably does not constitute tangible personal property under the TTCA to

waive immunity, even if the information was reduced to writing. In addition,

Appellant's alleged negligent misuse of the "information" still would not invoke

subject jurisdiction to the trial court, as held by Texas common law.

Appellant also alleged fraud and forgery in regards to Appellee's failure to

provide accurate information regarding the rules and polices of the Texas

Commission on Jail Standards. Both fraud and forgery are intentional torts. See

Walton v. Tex. Dep't of Crim. Justice, No. 13-07-00656-CV, 2008 WL 3868113 at

* 1 (Tex.App.—Corpus Christi Aug. 21, 2008, pet. denied) ("appellant filed a

lawsuit against appellees alleging a number of intentional torts and the court

concluded that appellant's claims fall within the intentional tort exception to the

TTCA. . . .). As noted, the TTCA does not waive Appellee's immunity in regards

to intentional torts. Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2015).

Therefore, Appellant's intentional tort causes of action against Appellee do not

waive immunity and the trial court did not err in granting Appellee's plea to

jurisdiction.

27
iv. Personal Injury

As thoroughly discussed in the foregoing paragraphs, personal injury alone

does not waive governmental immunity from suit. The Supreme Court has long

recognized that "it is the Legislature's sole province to waive or abrogate

immunity." See Fed Sign. v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997); see

also Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980); Missouri Pac. R.R. Co. v.

Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex. 1970); Griffin v.

Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960); W.D. Haden Co. v. Dodgen,

158 Tex. 74, 308 S.W.2d 838, 840 (1958); Tex. Highway Dep't v. Weber, 147 Tex.

628, 219 S.W.2d 70, 71(1949); Hosner v. DeYoung, 1 Tex. 764, 769 (1847).

As described, the TTCA prescribes the manner in which governmental

immunity from suit is waived wherein a plaintiff can make a viable claim for

personal injuries. The Appellant herein, however, has failed to establish any

waiver of immunity from suit; and thus, the Court need not reach the question

regarding personal injury. Indeed, Appellee did not cause personal injury to

Appellant as a result of the operation or use of a motor-driven vehicle. Neither did

Appellee cause Appellate personal injury by a condition or use of tangible personal

or real property. As previously noted, the non-use of tangible personal property

does not fall under the waiver provisions of the Texas Tort Claims Act to allow a

plaintiff to make a claim for personal injuries. Finally, a claimant, here the

rA*J
Appellant, may not recover mental anguish damages in connection with negligent

misrepresentation, pursuant to Texas common law. Federal Land Bank Assoc. v.

Sloane, 825 S.W.2d 439 (Tex. 1991).

Thus, Appellant's alleged personal injury is non-compensable under Texas

law as Appellant failed to affirmatively show waiver of governmental immunity

from suit.

II. Conclusion Concerning Plea to the Jurisdiction

Because Appellant cannot demonstrate a waiver of governmental immunity,

Appellant's causes of action against Appellee were properly dismissed with

prejudice by the trial court in its grant of Appellee's Plea to the Jurisdiction.

WHEREFORE, Appellee, Nueces County, prays the Court dismiss this

appeal, uphold the district court's grant of plea to jurisdiction and dismissal of this

action with prejudice, and tax costs against Appellant.

29
Respectfully submitted,

LAURA GARZA JIMENEZ,
NTJECES COUNTY ATTORNEY

By:/s/ Juan J. Maldonado, III
Jenny Cron
Assistant County Attorney
State Bar No. 00796237
Juan J. Maldonado, III
Assistant County Attorney
State Bar No. 240834436
901 Leopard, Room 207
Corpus Christi, TX 78401
(361) 888-0391
(361) 888-0577 facsimile
jenny.boydnuecesco.com
juan.ma1donadonuecesco.com
ATTORNEYS FOR APPELLEE,
NUECES COUNTY, TEXAS

30
CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word

2010 and contains 4,006 words, as determined by the computer software's word

count function, excluding the sections of the document listed in Texas Rules of

Appellate Procedure 9.4(i)(1).

Is! Juan J. Maldonado, III
JUAN J. MALDONADO,III

31
CERTIFICATE OF SERVICE

I IThREBY CERTIFY that a true and correct copy of this document was
served on:

VIA CMRRR 7014 1200 0001 0754 0659
Mr. James Wilkins
TDJC: 01970009
SD: 10123934
Texas Department of Criminal Justice
Fabian Dale Dominguez State Jail
6535 Cagnon Road
San Antonio, Texas, 78252-2202

on this the 6th day of November, 2015.

Is! Juan J. Maldonado, III
JUAN J. MALDONADO, Ill

32
CAUSE NO. 13-14-00570-CV

JAMES WILKINS
Appellant

NUECES COUNTY, TEXAS,
Appellee

APPELLEE' S APPENDIX

LIST OF DOCUMENTS

1.Trial Court's Appealable order dated 9/15/14
Dismissal for Lack of Subject Matter Jurisdiction............................................Tab A

2. Rules relied on
37 TEX. ADMIN. CODE § 259.138, Holding Cells (West 2015) ..................Tab B

37 TEX. ADMIN. CODE § 277.8, Bedding and Linens (West 2015) ............Tab B

37 TEX. ADMIN. CODE § 297.9, Other Conirn'n Remedies (West 2015) ... Tab B

2013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS) .......Tab B

2014 TX REG TEXT 339463 (NS), 2014 TX REG TEXT 339463 (NS) .......Tab B

33
CAUSE NO. 2013-DCY-5868-D

JAMES WILKINS § IN THE DISTRICT COURT
§
§ 105" JUDICIAL DISTRICT
§
NUECES COUNTY, TEXAS § NUECES COUNTY, TEXAS

ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION

ON THIS DAY came on to be heard Defendant Flea to the Jurisdiction. It appears to

the Court that the plea to the jurisdiction should be sustained because this Court lacks subject

matter jurisdiction.

Plaintiff's action against Defendant Nueces County, Texas, is hereby dismissed for lack

of subject matter jurisdiction. This is a final order disposing of all claims against Defendant

Nueces County, Texas.

Signed on
q/11
/

PATSY PEi-IEZ, DISTRICT CLERK
I NUECES COUNTY
§ 259138. Holding Cells, 37 TX ADC § 259.138

37 TAC § 259.138
Tex. Admin. Code tit. 37, § 259.138

§ 259.138. Holding Cells

Currentness

(a) One or more holding cells shall be provided to hold inmates pending intake, processing, release, or other
reason for temporary holding. Inmates shall not be held for more than 48 hours and the cell shall include the
following features.

(1) Seating. A stationary bench or benches abutting the walls shall be provided. Benches shall be 17" to
19" above the finished floor and not less than 12" wide. Seating shall be sufficient to provide not less than
24 linear inches per inmate at cell capacity.

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories, and floor drains. The floor shall be
properly pitched to drains.

(3) Cell Size. The size of the cell shall be determined by the anticipated maximum number of inmates to be
confined at any one time. Cells shall be constructed to house from one to 24 inmates and shall contain not
less than 40 square feet of floor space for the first inmate and 18 square feet of floor space for each
additional inmate to be confined.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to
materially reduce noise.

V*[v;?Next © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 259.138. Holding Cells, 37 TX ADC § 259.138

(b) Remote Holding Cells. Holding cells that are separate from the facility and utilized for direct court holding,
processing, or for inmates awaiting transportation. Inmates shall not be held for more than 4 hours and the cell
shall include the following features.

(1) Seating. A stationary bench or benches abutting the walls shall be provided. Benches shall be 17" to
19" above the finished floor, and not less than 12" wide. Seating shall be sufficient to provide not less than
18 linear inches per inmate at cell capacity.

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories capable of providing drinking water,
and floor drains. The floor shall be properly pitched to drains.

(3) Cell Size. The size of the cell shall be determined by the anticipated maximum number of inmates to be
confined at any one time. Cells shall be constructed to house from one to 24 inmates and the capacity shall
be determined by the amount of seating provided and posted at the exterior of the cell.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to
materially reduce noise.

(6) Smoke Detection. Smoke detection capability shall be provided. The alarm shall annunciate at a staffed
location in close proximity to the cell. Additional life safety items shall be compatible with the remainder
of the building.

(7) Audible Communication. Audible communications shall be provided.

(c) Remote Holding Cells. Holding cells that are separate from the facility and utilized for direct court holding,
processing, or for inmates awaiting transportation. Inmates shall not be held for more than 8 hours and the cell
shall include the following features.
4N4ext © 2015 Thomson Reuters. No c(aim to origria! U. S. Government Works.
§ 259.138. Holding Cells, 37 TX ADC § 259.138

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories capable of providing drinking water,
and floor drains. The floor shall be properly pitched to drains.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to
materially reduce noise.

(7) Audible Communication. Audible communications shall be provided.

Credits

Source: The provisions of this § 259.138 adopted to be effective December 12, 1994, 19 TexReg 9376;
amended to be effective August 16, 1996, 21 TexReg 7565; amended to be effective February 4, 1999, 24
TexReg 591; amended to be effective May 3, 2000, 25 TexReg 3791; amended to be effective October 16,
2007, 32 TexReg 7267.

Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015

k&1i4NeYt © 2015 Thomson Reuters. No claim to original U. S. Government Works.
§ 259.138. Holding Cells, 37 TX ADC § 259.138

WI.vNext © 2015 Thomson Routers. No claim to original U.S. Government Works. 4
§ 277.8. Bedding and Linens, 37 TX ADC § 277.8

Corrections
on on Jail Standards
, Personni Hygiene and Bedding

37TAC § 277.8
Tex. Admin. Code tit. 37, § 277.8

§ 277.8. Bedding and Linens

Currentness

A standard issue of bedding and linens to each inmate to be placed in housing shall include, but shall not be
limited to, the following clean, safe, and serviceable items:

(I) one mattress;

(2) one sheet or mattress cover;

(3) one towel;

(4) one blanket, or more depending upon climatic conditions. Inmates detained in holding and/or detoxification
cells maybe provided with the above items.

Credits

Source: The provisions of this §277.8 adopted to be effective December 20, 1994, 19 TexReg 9652; amended
to be effective May 3, 1995, 20 TexReg 2867; amended to be effective March 31, 2014, 39 TexReg 2296.

Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015

r7iTNCt © 2015 Thomson Reuters. No claim to original U.S. Government Works, 1
§ 2979. Other Commission Remedies, 37 TX ADC § 297.9

37TAC § 297.9
Tex. Admin. Code tit. 37, § 297.9

§ 297.9. Other Commission Remedies

Currentness

In addition to or in lieu of the remedial order remedies described in § 297.8 of this title (relating to Remedial
Order by Commission) the commission may institute an action in its own name to enforce or enjoin the
violation of its orders, rules or procedures, or the Local Government Code, Chapter 351. An action brought
pursuant to this section is in addition to any other action, proceeding or remedy provided by law, and may be
brought in a district court of Travis County, Texas. A suit brought under this section shall be given preferential
setting and shall be tried by the Court, without a jury, unless the responsible officials request a jury, in
accordance with the Local Government Code, Chapter 351. The commission shall be represented by the
attorney general in such actions.

Credits

Source: The provisions of this § 297.9 adopted to be effective December 27, 1994, 19 TexReg 9882.

Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS)

NETECAN

2013 TX KEG TEXT 339463 (NS)

Texas Regulation Text Netscan
-

37 TAC 277.8
Proposed
October 04, 2013
Public Safety and Corrections

Bedding and Linens

The Texas Commission on Jail Standards proposes an amendment to s.277.8, concerning Bedding and Linens.
The purpose of the proposed amendment is to give sheriffs discretion in providing bedding and linens to
persons in holding/detoxification cells.
37 TAC 277.8

37 TAC 277.8

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 9. TEXAS COMMISSION ON JAIL STANDARDS

CHAPTER 277. CLOTHING, PERSONAL HYGIENE AND BEDDING

37 TAC §277.8

The Texas Commission on Jail Standards proposes an amendment to §277.8, concerning Bedding and Linens.
The purpose of the proposed amendment is to give sheriffs discretion in providing bedding and linens to
persons in holding/detoxification cells.

Brandon S. Wood, Executive Director, has determined that for the first five year period the amendment is in
effect there will be no fiscal implications for state or local government as a result of enforcing or administering
the amended section.

Mr. Wood has also determined that for each year of the first five years the amendment is in effect the public
benefits anticipated as a result of enforcing the amendment as proposed will be clarification of existing
standards. There will be no effect on small businesses. There is no anticipated economic cost to persons who are
required to comply with the amendment as proposed.

Comments on the proposal may be submitted to Diana Spiller, P.O. Box 12985, Austin, Texas 78711; (512)
463-5505.

The amendment is proposed under Government Code, Chapter 511, which provides the Texas Commission on
Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance, and operation of county jails.
Et-Next © 2015 Thomson Reuters. No claim to original U. S. Government Works
2013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS)

The statutes that are affected by this amendment are Local Government Code, Chapter 351, §351.002 and
§351.015.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the
agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 18, 2013.

TRD-2013 04077

Brandon S. Wood

Executive Director

Texas Commission on Jail Standards

Earliest possible date of adoption: November 3, 2013

For further information, please call: (512) 463-8236

End of Document Z2015 Thomson Reuters. No claim to original U.S. Government Works.

II*ISfN

INexr © 2015 Thomson Reuters. No claim to original US. Government Works. 2
2014 TX REG TEXT 339463 (NS), 2014 Tx REG TEXT 339463 (NS)

Fl*$1*1 I

2014 TX REG TEXT 339463 (NS)

Texas Regulation Text Netsean
-

37 TAC 277.8
Adopted
March 28, 2014
Effective: March 31, 2014
Public Safety and Corrections

Bedding and Linens

The Texas Commission on Jail Standards (TCJS) adopts an amendment to s.277.8, concerning Bedding and
Linens, with changes to the proposed text as published in the October 4, 2013, issue of the Texas Register (38
TexReg 6885).
37 TAC 277.8

37 TAC 277.8

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 9. TEXAS COMMISSION ON JAIL STANDARDS

CHAPTER 277. CLOTHING, PERSONAL HYGIENE AND BEDDING

37 TAC §277.8

The Texas Commission on Jail Standards (TCJS) adopts an amendment to §277.8, concerning Bedding and
Linens, with changes to the proposed text as published in the October 4, 2013, issue of the Texas Register (38
TexReg 6885).

The purpose of the proposed addition is to clarify the issuance of bedding and linens to inmates.

Multiple comments were received from representatives of the Texas Jail Project opposing the proposed
amendment. The commenters opposed giving sheriff or his or her designee the discretion to provide bedding
and linen items to inmates detained in holding or in detoxification cells. TCJS chairperson appointed a
committee to study the standard.

The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on
Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance, and operation of county jails.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the
agency's legal authority.

W.LkNext 02015 Thomson Reuters. No claim to original US. Government Works
2014 TX REG TEXT 339463 (NS), 2014 TX REG TEXT 339463 (NS)

Filed with the Office of the Secretary of State on March 11, 2014.

TRD-201401125

Brandon S. Wood

Executive Director

Texas Commission on Jail Standards

Effective date: March 31, 2014

Proposal publication date: October 4, 2013

For further information, please call: (512) 463-8236

I1*fIMAWl