Harris County, Texas v. Stephanie Jo Baker

FILED IN
st
1 COURT OF APPEALS
HOUSTON, TX
December 16, 2015
No. 01-15-00930-CV CHRISTOPHER A. PRINE,
CLERK
__________

IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
__________
HARRIS COUNTY, TEXAS,
Appellant,
v.

STEPHANIE JO BAKER,
Appellee.
__________
On Appeal from the 295th District Court
Harris County, Texas, Cause No. 2014-02549

BRIEF OF APPELLANT
______________________________________________________________

V INCE R YAN
Harris County Attorney
K EIT H A. T OLER
Assistant County Attorney
State Bar No. 24088541

HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
Phone: (713) 274-5265
Fax: (713) 755-8924
Email: Keith.Toler@cao.hctx.net

Counsel for Appellant
Harris County, Texas
 IDENTITY OF PARTIES AND COUNSEL

Appellant Counsel
Harris County, Texas V INCE R YAN
Harris County Attorney
Of Counsel
F. C LINT ON G AMBILL II
Senior Assistant County Attorney
Trial Counsel

K EIT H A. T OLER
Assistant County Attorney
Appellate Counsel

HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002

Appellee Counsel
Stephanie Jo Baker L. J AMES K RELL
R ON S. R AINEY
Trial and Appellate Counsel

TRITICO RAINEY, PLLC
1523 Yale St.
Houston, Texas 77008

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 TABLE OF CONTENTS
Identity of Parties and Counsel .........................................................................ii

Table of Contents ............................................................................................ iii

Index of Authorities .......................................................................................... v

Statement of the Case ....................................................................................... 2
Statement of Jurisdiction .................................................................................. 2

Statement Regarding Oral Argument ............................................................... 2

Statement Regarding Record References ......................................................... 3

Issues Presented ................................................................................................ 3
Statement of Facts ............................................................................................. 4

Summary of the Argument ............................................................................... 9
Argument ........................................................................................................ 11

I. The standard of review is de novo........................................................ 11

II. Baker’s alleged injury from the use of handcuffs during her arrest
arises out of battery, an intentional tort for which the Tort Claims
Act expressly retains governmental immunity. .................................... 12
III. The Tort Claims Act does not waive governmental immunity
over Baker’s claim of injury from the use of (1) handcuffs while
in the booking room, (2) the booking room, or (3) the booking-
room contents. ...................................................................................... 17

A. Baker’s booking-room claim arises out of battery, for which
the Tort Claims Act retains governmental immunity. .................. 17

B. The handcuffs, booking room, and booking-room contents
did no more than furnish the condition that made Baker’s
injury possible. .............................................................................. 20

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IV. Baker amended her pleadings after Harris County filed its plea
to the jurisdiction but before the district court ruled on it, so she
should not be allowed another attempt to cure..................................... 24

Conclusion & Prayer ....................................................................................... 26

Certificate of Compliance ............................................................................... 27
Certificate of Service ...................................................................................... 27

Appellant’s Appendix ..................................................................................... 28
1) District Court Order (Oct. 14, 2015)

2) Texas Civil Practice & Remedies Code § 101.021

3) Texas Civil Practice & Remedies Code § 101.057

4) City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014)

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 INDEX OF AUTHORITIES

Cases Page
City of Houston v. Davis,
294 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2009, no pet.).........20

City of Waco v. Hester,
805 S.W.2d 807 (Tex. App.—Waco 1990, writ denied).......................21

City of Watauga v. Gordon,
434 S.W.3d 586 (Tex. 2014) .......................................................... 12, 13

Dallas Cnty. MHMR v. Bossley,
968 S.W.2d 339 (Tex. 1998) .......................................................... 20, 21

Martinez v. City of Brownsville,
No. 13-00-425-CV, 2001 WL 1002399
(Tex. App.—Corpus Christi Aug. 31, 2001, pet. denied) .....................21

Nunez v. City of Sansom Park,
197 S.W.3d 837 (Tex. App.—Fort Worth 2006, no pet.) .....................21

Pineda v. City of Houston,
175 S.W.3d 276 (Tex. App.—Houston [1st Dist.] 2004, no pet.).........14

Retzlaff v. Texas Dep’t of Criminal Justice,
135 S.W.3d 731 (Tex. App.—Houston [1st Dist.] 2003, no pet.).........23

Rusk State Hosp. v. Black,
392 S.W.3d 88 (Tex. 2012) ...................................................... 12, 20, 24

Scott v. Prairie View A&M Univ.,
7 S.W.3d 717
(Tex. App.—Houston [1st Dist.] 1999, pet. denied) ...................... 21, 22

Texas Dep’t of Criminal Justice—Cmty. Justice Assistance Div. v. Campos,
384 S.W.3d 810 (Tex. 2012) .................................................................24

-v-
Cases—Continued Page
Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) .......................................................... 11, 24

Vela v. City of McAllen,
894 S.W.2d 836 (Tex. App.—Corpus Christi 1995, no pet.) ................21

Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West 2015) ...............................2

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2015) .................... 12, 20

Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2015) ...........................12

Tex. Penal Code Ann. § 22.01 (West 2015) .................................................... 13

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 No. 01-15-00930-CV
__________

IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
__________
HARRIS COUNTY, TEXAS,
Appellant,
v.

STEPHANIE JO BAKER,
Appellee.
__________
On Appeal from the 295th District Court
Harris County, Texas, Cause No. 2014-02549

BRIEF OF APPELLANT
______________________________________________________________

To the Honorable Justices of the First Court of Appeals:

Harris County is immune from Baker’s claims of injuries during her

lawful arrest and booking in the Harris County jail. Because both claims arise

out of intentional torts, for which the Tort Claims Act expressly retains

immunity, the district court should have granted Harris County’s plea to the

jurisdiction and dismissed Baker’s claims. Therefore, Harris County

respectfully asks this Court to reverse the district court order denying Harris

County’s plea to the jurisdiction, to render judgment in favor of Harris County,

and to dismiss Baker’s claims.

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 STATEMENT OF THE CASE
In this suit for damages, Appellant Harris County, Texas, filed a plea to

the jurisdiction challenging the district court’s subject-matter jurisdiction over

Appellee Baker’s claims.1 The district court denied Harris County’s plea in an

appealable interlocutory order, and Harris County appealed.2

STATEMENT OF JURISDICTION
This Court has jurisdiction under section 51.014(a)(8) of the Civil

Practice and Remedies Code to review the district court’s interlocutory order

denying Harris County’s plea to the jurisdiction.3

STATEMENT REGARDING ORAL ARGUMENT
Harris County believes the facts and legal arguments in this case are

adequately presented in the briefs and record, and the decisional process would

not be significantly aided by oral argument. However, Harris County welcomes

the opportunity to present oral argument if the Court determines it would be

helpful.

1
See generally C.R. at 10–20 (Harris County’s Plea to the Jurisdiction), 69–76
(Baker’s First Amended Petition), 77–85 (Supplement to Harris County’s Plea to the
Jurisdiction).
2
C.R. at 112 (Order), 115–16 (Harris County’s Notice of Appeal).
3
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2015).

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 STATEMENT REGARDING RECORD REFERENCES
On appeal, the Clerk’s Record is designated as “C.R.” There is no

Reporter’s Record in this appeal of an interlocutory summary order denying

Harris County’s plea to the jurisdiction.

ISSUES PRESENTED
Issue 1
The Tort Claims Act expressly retains governmental immunity for an
injury arising out of an intentional tort even if the plaintiff couches her claims
in terms of negligence. The Texas Supreme Court recently determined that a
lawful arrest is an intentional tort, namely battery. Baker alleges she was
injured by a negligent use of handcuffs during her lawful arrest. Is
governmental immunity preserved for Baker’s arrest-related claim?

Issue 2
If a claim does not arise out of an intentional tort, the Tort Claims Act
waives governmental immunity for the negligent use of tangible property. But
the property must do more than merely furnish the condition making the injury
possible. Baker claims she was injured in the booking room by the deputy’s use
of handcuffs, the booking room, and/or the property inside the booking room.
Is sovereign immunity preserved because (1) Baker’s claims arise out of an
intentional tort or (2) the property only furnished the condition making Baker’s
injury possible?

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 STATEMENT OF FACTS
Stephanie Jo Baker was arrested by a Harris County Sheriff’s Office

(HCSO) deputy on January 24, 2012, in a parking lot for possession of a

controlled substance.4 She was intoxicated when arrested and booked into the

Harris County jail.5 Baker alleges she was injured by the arresting deputy’s use

of handcuffs during her arrest and again in the booking room where she fell

down.6 Baker sued Harris County, Texas, alleging that her injuries occurred as

a result of Harris County’s “negligent use and/or condition of tangible personal

property . . . ”7

Baker filed her original petition on January 21, 2014, alleging that the

deputy overtightened her handcuffs, “violently pull[ed] down on the hand cuffs

and [struck] [Baker] in the back with his knees[,]” and “slammed [Baker] to the

ground and verbally threatened that not only would he kill her, but nobody

would care.”8 She stated, “[a]fter arriving at the police station, the violence

continued. Still using the handcuffs for leverage, the deputy slammed [Baker]

4
C.R. at 70.
5
C.R. at 70.
6
C.R. at 70.
7
C.R. at 71.
8
C.R. at 4.

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repeatedly into several pieces of furniture at and/or around the booking area of

the police station including a concrete bench.”9

In response to interrogatories, Baker stated, “the police officer violently

closed the cuffs and continued to squeeze them until my left wrist was

fractured. . . . He continued to twist the cuffs once they were applied and lifted

my body weight using the cuffs as well.”10 Baker said, while in the booking

room, “I was slammed on the concrete benches, still using the handcuffs, head

first causing my teeth to basically shatter. It is my belief that other objects such

as tables could have been used to cause my injuries as well. At this time, I had

already been knocked unconscious previously.”11

She further explained both incidents in her deposition. Baker testified the

deputy “twisted” her hands, “jerked” her around, “slammed” her to the ground,

and continued to “hit” her head and “jerk” her in the booking room:

I remember [the arresting deputy] twisting my hands behind my
back and jerking me around; and he would put his knee behind my
knee so I would fall or, you know, trip or whatever. And I kept
telling him that he was breaking my wrist. Then I remember
getting—I don’t know if I was slammed to the ground, to the car
or curb; and that’s when I felt my teeth fissure. . . . I remember
being in the back of the car, and I was really in shock.

9
C.R. at 4.
10
C.R. at 80, 93.
11
C.R. at 81, 95, 96.

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 And I was sitting there [in the police car] and I was thinking to
myself, “Well, you know, this guy is going to fricking kill me,”
you know. And I was thinking, “Wow, Stephanie.” And I was just
terrified, . . . [A]nd then I went to the jail, and he booked me in
there. And then he did the same thing there, and I hit my head on—
I think—like I said, I’m pretty sure I hit my head on the cement
benches. It was not I hit my head. He hit my head, you know, when
he jerked me.12

When pushed on whether the deputy intentionally threw her to the ground,

Baker proclaimed, “He intentionally threw me to the ground[,]” and “he was

very angry and aggressive and hateful. So, yeah, I’m sure he meant to do it.”13

Harris County filed a plea to the jurisdiction on December 22, 2014,

arguing that the Tort Claims Act retains immunity for Baker’s intentional-tort

claims.14 The plea argued that the district court lacked subject-matter

jurisdiction over Baker’s claims and prayed that the district court would grant

the plea and dismiss the case.15

Baker responded to Harris County’s plea on January 2, 2015, arguing her

injuries were caused by the deputy’s use of handcuffs, the booking room, and

“furniture in the booking room.”16 Her response relied on a Significant Event

12
C.R. at 30, 34–35.
13
C.R. at 38, 40.
14
C.R. at 12–20.
15
C.R. at 14–19.
16
C.R. at 59–61.

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Bulletin completed by jail staff, which Baker claims allegedly “state[d] that the

fall sustained by [Baker] [in the jail] which caused her injuries ar[o]se from the

officer raising his hand without intent to make contact, but merely to gain some

distance” and “proves that the injuries sustained were from the negligent use of

the restraints and placement of the booking room while [Baker] was

intoxicated.”17 The Significant Event Bulletin, however, stated that the deputy

“was in fear that [Baker] might assault him . . . [and] raised his arm in an

attempt to stop her and to maintain distance from himself”:

Deputy Valdez attempted to explain to [Baker] that she would be
taken across the street momentarily. She cursed him again and
stood back up and walked towards him. Since her handcuffs at that
time were still in front of her[,] Deputy Valdez was in fear that she
might assault him. Deputy Valdez raised his arm in an attempt to
stop her and to maintain distance from him. Due to her intoxicated
state she lost balance and fell down on her left side between the
concrete benches. . . . Baker became combative at that time and
attempted to kick [Deputy Valdez] in his leg but Deputy Valdez
was able to grab her leg and she was unsuccessful. Deputy Waller
attempted to stand her up to sit her back down on the bench and
she attempted to bite Deputy Waller. . . . Baker was successfully
sat down on the bench but continued to curse Deputy Valdez and
Deputy Waller.18

17
C.R. at 60.
18
C.R. at 63.

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 Three days later, Baker amended her petition.19 In it, she raised the same

claims, but focused on negligent action by deleting words from her original

petition indicating an intentional tort, such as “violently slammed” and

“slammed repeatedly.”20

On January 16, 2015, Harris County supplemented its plea to the

jurisdiction. Harris County argued that Baker’s discovery responses and

deposition testimony showed that her claims were for intentional torts despite

couching her claims in terms of negligence.21 On the same day, Harris County

also answered Baker’s first amended petition.22 Harris County argued that the

Tort Claims Act does not waive immunity for intentional torts.23 On October

14, 2015, the district court denied Harris County’s plea and on October 28,

2015, Harris County appealed.24

19
See generally C.R. at 69–76.
20
Compare C.R. at 70 with C.R. at 4.
21
C.R. at 77–78, 79–84.
22
See generally C.R. at 108–10.
23
C.R. at 109.
24
C.R. at 112.

-8-
 SUMMARY OF THE ARGUMENT
Baker alleges she was injured when a HCSO deputy used handcuffs to

lawfully arrest her. Baker also alleges she was injured in the jail booking room

when the deputy used handcuffs, the booking room, or booking-room contents.

But the Tort Claims Act does not waive immunity for either claim, and the

district court lacked jurisdiction over them.

The Tort Claims Act expressly retains sovereign immunity for claims

arising out of an intentional tort, such as an arrest. Baker’s allegations of injury

due to the deputy’s use of handcuffs during her arrest states a claim arising out

of a battery: the arrest. Harris County submitted evidence to support its

motion—Baker’s interrogatory responses and deposition testimony. The

evidence shows that her claims arise out of an intentional tort. Thus, the district

court lacked subject-matter jurisdiction over Baker’s claim of arrest-related

injury because the Tort Claims Act expressly retains immunity for claims

arising out of an intentional tort.

Baker’s claims of injury in the booking room also arise from an

intentional tort. Harris County submitted supporting evidence—Baker’s

interrogatory responses and deposition testimony—in which Baker says the

deputy was angry and intentionally caused her injury. Further, an official

HCSO report shows that Baker was cursing the officers and repeatedly

-9-
approached them despite orders to remain seated. According to the report, the

deputy only used force in self-defense to prevent Baker from approaching him

in a threatening manner.

But even if the booking-room incident may have resulted from

negligence, Baker has not—and cannot—show that her injuries were caused by

a use of property. At best, the evidence shows Baker’s cursing and approaching

the deputy prompted the deputy to use some force to maintain distance from

her. This self-defense caused Baker’s alleged injuries; the handcuffs, booking

room, and booking-room contents only furnished the condition making injury

possible. Thus, Baker’s booking-room injuries either arose out of an intentional

tort or were not caused by a use of property. Either way, the district court lacked

jurisdiction over the booking-room claims, just as it lacked jurisdiction over

Baker’s arrest claims.

In addition, Baker had ample opportunity to amend her pleadings after

Harris County filed its plea and before the district court ruled. Yet she still

failed to state a claim over which immunity is waived. Baker should not be

allowed another attempt to cure her pleadings. Thus, Harris County respectfully

asks the Court to reverse the district court order denying Harris County’s plea

to the jurisdiction, to render judgment in favor of Harris County, and to dismiss

Baker’s claims.

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 ARGUMENT

I. The standard of review is de novo.
An appellate court reviews de novo a district court order denying a plea

to the jurisdiction.25 A plea may challenge a court’s jurisdiction by attacking

the pleadings or the existence of jurisdictional facts.26 When a party submits

evidence in support of its plea to the jurisdiction, as Harris County did, the

challenge is to the existence of jurisdictional facts.27

In reviewing a challenge to the existence of jurisdictional facts, an

appellate court—like the district court below—considers relevant evidence

submitted by the parties that is necessary to resolve the jurisdictional issue. 28

All evidence favorable to the nonmovant is considered true.29 If the evidence

raises a fact question about the jurisdictional issue, the plea should be denied.

But if the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the plea should be granted.30

25
E.g., Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
26
Id. at 226–27.
27
Id. at 227–28.
28
Id. at 227.
29
Id. at 228.
30
Id. at 227–28.

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II. Baker’s alleged injury from the use of handcuffs during her arrest
arises out of battery, an intentional tort for which the Tort Claims
Act expressly retains governmental immunity.
Baker’s only claim against Harris County is a respondeat superior theory

of liability for the actions of a HCSO deputy during Baker’s arrest and booking

into the Harris County jail.31 Yet she has not stated a claim over which Harris

County’s governmental immunity is waived.

Governmental or sovereign immunity deprives a court of subject-matter

jurisdiction.32 Governmental immunity may be waived by the legislature’s clear

and unambiguous language, such as the language in the Tort Claims Act’s

(TTCA) limited waiver provision.33 But the TTCA expressly “does not apply

to a claim . . . arising out of assault, battery, . . . or any other intentional tort[.]”34

In City of Watauga v. Gordon, the Texas Supreme Court recently held

that a claim against a municipality for injuries accidentally caused by a police

officer’s use of handcuffs during a lawful arrest is a claim for battery alone, and

thus sovereign immunity is expressly retained.35 In that case, Gordon was

31
C.R. at 72.
32
E.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 94–95 (Tex. 2012).
33
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2015).
34
Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2015).
35
City of Watauga v. Gordon, 434 S.W.3d 586, 588 (Tex. 2014). See also Tex. Civ.
Prac. & Rem. Code Ann. § 101.057(2).

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arrested on suspicion of drunk driving and arrested without incident. He

claimed to have informed officers—both at the arrest site and later at the police

station—that his handcuffs were too tight.36 The Gordon Court determined the

claim was for battery, relying on the penal-code definition of “assault”:

 intentionally, knowingly, or recklessly causing bodily injury;
 intentionally or knowingly threatening another with imminent bodily
injury; or
 intentionally or knowingly causing offensive physical contact with
another.37
This definition includes common-law concepts of both assault and battery and

has been applied to civil claims of battery and assault.38 Thus, the Court

concluded that a lawful arrest is a battery as a matter of law:

The actions of a police officer in making an arrest necessarily
involve a battery, although the conduct may not be actionable
because of privilege. The officer is privileged to use reasonable
force. But a police officer’s mistaken or accidental use of more
force than reasonably necessary to make an arrest still “arises out
of” the battery claim. “As the saying goes, there is no such thing
as a negligent battery, since battery is defined to require an
intentional touching without consent not a negligent one.”39

36
Gordon, 434 S.W.3d at 588.
37
Id. at 590 (citing Tex. Penal Code Ann. § 22.01(a) (West 2015)).
38
Gordon, 434 S.W.3d at 589–90.
39
Id. at 594 (citations omitted).

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 Further, the TTCA bars intentional-tort claims even if they are framed as

negligence.40 As this Court has stated, “A plaintiff cannot circumvent the

intentional tort exception by couching his claims in terms of negligence.”41

Although Baker’s amended petition framed her claims as negligence,

Baker’s arrest-related claim of injury arises out of the intentional tort of battery.

In her amended petition, Baker states that “the deputy placed [Baker] in

handcuffs in a negligent manner where the hand cuffs were negligently placed

around [Baker’s] wrist. The deputy began to pull down on the hand cuffs. This

caused severe injuries to both Plaintiff’s back and wrists.”42 But this is exactly

the kind of battery the Supreme Court found not actionable under the TTCA in

Gordon: even if Baker’s injuries were caused by a negligent overtightening of

the handcuffs, her claim arose from her arrest, which is a battery. Because

Gordon controls, Baker’s claim is barred under the TTCA as a matter of law.

The evidence supporting Harris County’s plea confirms that Baker’s

claim is for an intentional tort. In her deposition, Baker testified that, despite

40
Pineda v. City of Houston, 175 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.]
2004, no pet.).
41
Id.
42
C.R. at 70.

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her protests, the deputy twisted her hands, jerked her around, caused her to fall,

and slammed her to the ground:

I remember him twisting my hands behind my back and jerking
me around; and he would put his knee behind my knee so I would
fall or, you know, trip or whatever. And I kept telling him that he
was breaking my wrist. Then I remember getting—I don’t know
if I was slammed to the ground, to the car or curb; and that’s when
I felt my teeth fissure.
. . .
[The deputy] squeezed [the handcuffs]. He was—he was just
really pissed off at me for whatever reason. He was just very
pissed off and he was being very hard and he squeezed. I told
him—this is not the first time I had handcuffs on. . . . He was just
squeezing and squeezing and twisting. I said, “Man, you’re
breaking my wrist.” So, it was violent and, you know, intense.43

Baker declared the deputy “absolutely” intentionally squeezed the handcuffs.44

And her interrogatory responses likewise stated the deputy “violently” clasped

the handcuffs, pulled them down, and “threw” her around while he “struck” her

“for no reason at all”:

[The deputy] violently closed the cuffs and continued to squeeze
them until my left wrist was fractured. . . . He continued to twist
the cuffs once they were applied and lifted my body weight using
the cuffs as well.
. . .
[A]t no point was I resisting arrest. The officer would violently
pull the cuffs down and throw me around while he struck me in
the back causing injury for no reason at all and certainly a

43
C.R. at 34, 36. See also C.R. at 11, 17 (Harris County’s plea using Baker’s deposition
as supporting evidence); C.R. at 79, 83 (Harris County’s supplemental plea incorporating its
plea and using Baker’s deposition as supporting evidence).
44
C.R. at 36.

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 reasonable officer in his capacity would not have behaved in this
manner.
. . .
[T]he cuffs were used to lift my body weight off of the ground and
then I was slammed violently to the ground causing me to lose
conscious [sic].45

Baker’s own words show an intentional tort, even if contradicted by the

language in her amended petition. Thus, no legal or factual issue exists as to

whether Baker’s claim arises out of an intentional tort. Viewed in the light most

favorable to Baker, the evidence shows that her claim arises out of the battery

inherent in a lawful arrest. Even if the deputy negligently caused her injuries,

Baker’s claim is barred because it arises out of an intentional tort, for which

governmental immunity is expressly preserved. The district court, therefore,

lacked subject-matter jurisdiction over Baker’s arrest-related claims, and this

Court should reverse the order denying Harris County’s plea to the jurisdiction

on Baker’s arrest-related claim, render judgment in favor of Harris County, and

dismiss the claim.

45
C.R. at 93, 94.
- 16 -
III. The Tort Claims Act does not waive governmental immunity over
Baker’s claim of injury from the use of (1) handcuffs while in the
booking room, (2) the booking room, or (3) the booking-room
contents.

A. Baker’s booking-room claim arises out of battery, for which
the Tort Claims Act retains governmental immunity.
The evidence supporting Harris County’s plea and Baker’s response

shows that the incident in the booking room, like the arrest, arose out of an

intentional tort.46 Despite careful drafting to eliminate any words indicating an

intentional act, Baker’s amended petition shows she approached the deputy

after being ordered to sit down and caused the deputy to use self-defense against

Baker’s advances:

While in the booking room . . . , [Baker] was left restrained and
placed on a bench. Employees of the Harris County Sheriff’s
Department were aware that [Baker] was intoxicated but left the
restraints on her hands and failed to fully restrain her so that she
could not stand up. After being told to sit down once, Plaintiff
stood up and approached an officer. The officer put his hand up to
form distance between himself and [Baker]. [Baker] then fell and
received injuries due to property located in the booking room
and/or the restraints that were being improperly used.47

Baker’s amended petition alone shows the deputy intended or knew he

might cause injury or offensive physical contact by defending himself against

Baker’s advances. And Baker’s deposition testimony and interrogatory

46
See supra notes 34, 39–41, at 12–14.
47
C.R. at 70.

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responses confirm her claim arose out of an intentional tort. At her deposition,

Baker testified the deputy continued to “hit,” “jerk,” and “throw” her:

[A]nd then I went to the jail, and he booked me in there. And then
he did the same thing there, and I hit my head on—I think—like I
said, I’m pretty sure I hit my head on the cement benches. It was
not I hit my head. He hit my head, you know, when he jerked me.
. . .
I remember hitting my head and him being in control of my body.
You know, when he threw me down on the ground and I hit my
head to the ground, yeah, he had control; and I had no way to get
up and no way to block my fall.
. . .
Yes, he was very angry and aggressive and hateful. So, yeah, I’m
sure he meant to do it. . . . Yes, sir[,] [the officer intended it to
happen].48

In response to interrogatories, Baker said, “I was slammed on the concrete

benches, still using the handcuffs, head first causing my teeth to basically

shatter. It is my belief that other objects such as tables could have been used to

cause my injuries as well.”49 Baker’s own words affirm that her claims are for

intentional torts. Despite her artfully pled amended petition removing any terms

indicating an intentional act, Baker’s testimony reveals that the deputy was

angry with her and used intentional force.

The deputy’s side of the story reinforces Baker’s testimony and

contradicts her claims of negligence. In a Significant Event Bulletin, an official

48
C.R. at 35, 38, 40.
49
C.R. at 93. See also C.R. at 94.

- 18 -
report of the incident, the deputy explained that on the date of her arrest and

booking, Baker was intoxicated and had trouble standing. She complained

about having to change her feminine pad and became angry with and cursed

the officers when they did not immediately give her access to a restroom. She

repeatedly stood up and approached officers after being told to sit down. Baker

again approached the deputy in a threatening manner and the deputy

defensively distanced himself from her:

[Baker] cursed [the deputy] again and stood back up and walked
towards him. Since her handcuffs at that time were still in front of
her Deputy Valdez was in fear that she might assault him. Deputy
Valdez raised his arm in an attempt to stop her and to maintain
distance from him. Due to her intoxicated state she lost balance
and fell down on her left side between the concrete benches.
Defendant Baker became combative at that time and attempted to
kick him in his leg but Deputy Valdez was able to grab her leg and
she was unsuccessful. Deputy Waller attempted to stand her up to
sit her back down on the bench and she attempted to bite Deputy
Waller. Defendant Baker was successfully sat down on the bench
but continued to curse Deputy Valdez and Deputy Waller.50
The reporting deputy’s supervising lieutenant determined “there was no use of

force issues or violation of policy or law.”51

Thus, the evidence shows that Baker’s booking-room claim arose out of

an intentional tort. From the deputy’s perspective, he used force to defend

50
C.R. at 63.
51
C.R. at 63.

- 19 -
against unpermitted, disruptive advances. Such defensive actions are

intentional. From Baker’s perspective, the deputy “intended” to hurt her.

Because immunity deprives a court of subject-matter jurisdiction, and because

Harris County retains immunity for Baker’s intentional-tort claims, the district

court lacks subject-matter jurisdiction over Baker’s booking-room claims.

B. The handcuffs, booking room, and booking-room contents did
no more than furnish the condition that made Baker’s injury
possible.
Assuming Baker’s booking-room claims did not arise out of an

intentional tort, the TTCA does not waive immunity over the claims because

Baker has not shown her injury was caused by a use of property. Lack of

jurisdiction may be raised at any time including on appeal.52 Section 101.021(2)

of the Act waives immunity for personal injury negligently caused by a

governmental entity’s use of tangible property.53 The personal injury must have

been proximately caused by the condition or use of property. 54 “Property does

52
Rusk State Hosp., 392 S.W.3d at 94–95.
53
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2015).
54
Dallas Cnty. MHMR v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). See also City of
Houston v. Davis, 294 S.W.3d 609, 612 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

- 20 -
not cause injury if it does no more than furnish the condition that makes the

injury possible.”55

Contrary to Supreme Court and this Court’s precedent, the Tenth and

Thirteenth Courts of Appeals have found that a booking room or jail cell caused

injury because the room where the injury occurred was “used.” In Vela v. City

of McAllen, the Thirteenth Court of Appeals found a booking room was “used”

because the booking officer negligently placed a stool in the room and caused

Vela injury.56 In City of Waco v. Hester, the Tenth Court of Appeals determined

that a room in which Hester was assaulted and a television set on which the

guards monitored the room were “used” to cause Hester’s injuries.57

But this Court and several others have declined to follow Vela and Hester

or have disagreed with those opinions’ reasoning.58 In declining to follow the

reasoning in Hester, this Court determined that the prison door and room in

55
Bossley, 968 S.W.2d at 343 (citations omitted).
56
Vela v. City of McAllen, 894 S.W.2d 836, 840 (Tex. App.—Corpus Christi 1995, no
pet.).
57
City of Waco v. Hester, 805 S.W.2d 807, 814–15 (Tex. App.—Waco 1990, writ
denied).
58
E.g., Scott v. Prairie View A&M Univ., 7 S.W.3d 717, 720 (Tex. App.—Houston [1st
Dist.] 1999, pet. denied); Nunez v. City of Sansom Park, 197 S.W.3d 837, 842–43 (Tex.
App.—Fort Worth 2006, no pet.) (declining to follow Vela, Hester, and another Corpus
Christi Court of Appeals decision, Martinez v. City of Brownsville, No. 13-00-425-CV, 2001
WL 1002399 (Tex. App.—Corpus Christi Aug. 31, 2001, pet. denied)).

- 21 -
Hester were not defective under a premises defect theory, which is the proper

analysis to determine if immunity is waived for a claim of injury from the use

of real property.59 And the door and room “were too attenuated from the actual

injury to be considered the proximate cause of Hester’s injury.”60

At various times, Baker ambiguously claimed that the handcuffs, the

booking room, or the property inside the booking room caused her injuries. To

the extent she alleges the booking room caused her injuries, Baker never

alleged or argued that her injuries were caused by a premises defect.

To the extent she alleges injuries resulting from the handcuffs, Baker did

not show that they caused her injuries. Indeed, Baker testified she injured her

head and teeth in the booking room, not any part of her body contacting the

handcuffs, like her wrists.61 Baker just happened to be handcuffed when

injured. Nor has Baker shown her injuries were caused by the “use” of the

handcuffs. Contrary to her response that she was slammed on the benches “still

using the handcuffs,” Baker’s amended petition and the Significant Event

Bulletin state her injuries occurred as a result of the deputy’s self-defense, not

59
Scott, 7 S.W.3d at 720.
60
Id.
61
C.R. at 35, 95, 96.

- 22 -
the deputy’s use of the handcuffs.62 Thus, the handcuffs merely furnished a

condition that may have made her injuries possible.

Finally, to the extent Baker claims property in the booking room caused

her injuries, governmental immunity is not waived. Baker’s most specific

allegation is that she was injured by a concrete bench. But if the bench is real

property, i.e., a fixture attached to the room, then Baker has failed to show the

benches were defective and the defect caused her injuries. If the bench is

personal property, Baker has failed to allege that it did any more than furnish

the condition making her injury possible. Baker has not shown that the deputy

“used” the bench to cause her injuries.

As this Court has determined, jail officials have no duty to warn inmates

that barriers or deterrents may cause them harm.63 Jails utilize concrete benches

and other stationary, secured furniture so inmates cannot use it to disrupt. Such

furniture is necessary for the humane treatment of inmates. If Harris County

has a duty to warn inmates that injury might result from the concrete benches

in the booking room, then Harris County would be subject to substantial

liability beyond the legislature’s intent.

62
Compare C.R. at 95 with C.R. at 63, 70.
63
Retzlaff v. Texas Dep’t of Criminal Justice, 135 S.W.3d 731, 742 (Tex. App.—
Houston [1st Dist.] 2003, no pet.).

- 23 -
 All of Baker’s claims arise out of intentional torts. But even if her

booking-room injuries may have resulted from negligence, Baker has failed to

show that her injuries were caused by a negligent use of property. Thus, the

district court lacked subject-matter jurisdiction over Baker’s booking-room

claims. This Court should, therefore, reverse the order, render judgment in

favor of Harris County, and dismiss Baker’s claims.

IV. Baker amended her pleadings after Harris County filed its plea to
the jurisdiction but before the district court ruled on it, so she should
not be allowed another attempt to cure.
Baker should not be given an opportunity to attempt to cure any defects

in her pleadings. If a plaintiff had an opportunity to replead after a defendant

files a plea to the jurisdiction, then the plaintiff should not be allowed another

attempt to cure.64

Baker amended her petition shortly after Harris County filed its plea and

more than nine months before the district court ruled on it.65 As discussed,

Baker failed to plead claims for which the legislature has waived Harris

County’s immunity. And because Harris County’s plea challenged the

existence of jurisdictional facts, Baker could have—but did not—offer

64
Miranda, 133 S.W.3d at 231. See also Texas Dep’t of Criminal Justice—Cmty.
Justice Assistance Div. v. Campos, 384 S.W.3d 810, 815–16 (Tex. 2012) (citing Rusk State
Hosp., 392 S.W.3d at 96, 100).
65
C.R. at 10, 69, 112.

- 24 -
evidence to show the district court had jurisdiction over her claims. Baker had

ample opportunity to amend her pleadings and conduct discovery, yet she failed

to show a waiver of Harris County’s governmental immunity. Therefore, this

Court should not allow Baker any further attempts to cure her pleadings.

- 25 -
 CONCLUSION & PRAYER
Baker’s arrest and booking-room claims arose out of an intentional tort

for which the Tort Claims Act expressly retains governmental immunity. And

Baker’s booking-room injuries were not caused by a negligent use of property.

Because Harris County retains immunity over Baker’s claims, the district court

lacked subject-matter jurisdiction. Therefore, Harris County respectfully asks

the Court to reverse the district court order denying Harris County’s plea to the

jurisdiction, to render judgment in favor of Harris County, and to dismiss

Baker’s claims.

Respectfully submitted,

V INCE R YAN
Harris County Attorney

/s/ Keith A. Toler
K EIT H A. T OLER
Assistant County Attorney
State Bar No. 24088541

HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
Phone: (713) 274-5265
Fax: (713) 755-8924
Email: Keith.Toler@cao.hctx.net

Counsel for Appellant
Harris County, Texas

- 26 -
 CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft

Word and contains 5,027 words, as determined by the computer software’s

word-count function, excluding the portions of the document exempted by

Texas Rule of Appellate Procedure 9.4(i)(1). I further certify that the form of

this brief meets the requirements of Texas Rule of Appellate Procedure 9.4.

/s/ Keith A. Toler
K EIT H A. T OLER
Counsel for Appellant

CERTIFICATE OF SERVICE
I certify that on December 16, 2015, I served a true and correct copy of

this brief on L. James Krell and Ron S. Rainey, counsel for Appellee, by

electronic transmission via the electronic filing manager or by email.

L. James Krell
Ron S. Rainey
TRITICO RAINEY, PLLC
1523 Yale St.
Houston, Texas 77008
jkrell@triticorainey.com
rrainey@triticorainey.com

Counsel for Appellee

/s/ Keith A. Toler
K EIT H A. T OLER
Counsel for Appellant

- 27 -
 No. 01-15-00930-CV
__________

IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
__________
HARRIS COUNTY, TEXAS,
Appellant,
v.

STEPHANIE JO BAKER,
Appellee.
__________
On Appeal from the 295th District Court
Harris County, Texas, Cause No. 2014-02549

APPELLANT’S APPENDIX
______________________________________________________________

List of Documents
1) District Court Order (Oct. 14, 2015)
C.R. at 112 ............................................................................................Tab 1

2) Text of Texas Civil Practice & Remedies Code § 101.021..................Tab 2

3) Text of Texas Civil Practice & Remedies Code § 101.057..................Tab 3

4) City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014) ...................Tab 4

- 28 -
TAB #1
FILED
Chris Daniel
District Clerk

OCT 14 2015
CAUSE NO. 2014-02549

STEFANIE JO BAKER, § IN THE DISTRICT COURT OF
Plaintiff §
§
vs. §
§
HARRIS COUNTY, TEXAS, § HARRIS COUNTY, TEXAS
Defendant §
§ 295th JUDICIAL DISTRICT

ORDER

Came on to be heard Defendant Harris County, Texas' Plea to the Jurisdiction. This

Order memorializes the following previous ruling of the Court:

Upon consideration, the Court finds that Defendant Harris County, Texas' Plea to
the Jurisdiction should be DENIED. It is, therefore, ORDERED that Defendant Harris
County, Texas' Plea to the Jurisdiction is DENIED.

Signed this 14th day of October, 2015.
OCT 14 2015
Judge Presiding

RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
112
TAB #2
§ 101.021. Governmental Liability, TX CIV PRAC & REM § 101.021

KeyCite Yellow Flag - Negative Treatment
Proposed Legislation

Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 5. Governmental Liability
Chapter 101. Tort Claims (Refs & Annos)
Subchapter B. Tort Liability of Governmental Units (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 101.021

§ 101.021. Governmental Liability

Currentness

A governmental unit in the state is liable for:

(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:

(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.

Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (1428)

V. T. C. A., Civil Practice & Remedies Code § 101.021, TX CIV PRAC & REM § 101.021
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
TAB #3
§ 101.057. Civil Disobedience and Certain Intentional Torts, TX CIV PRAC & REM §...

Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 5. Governmental Liability
Chapter 101. Tort Claims (Refs & Annos)
Subchapter C. Exclusions and Exceptions

V.T.C.A., Civil Practice & Remedies Code § 101.057

§ 101.057. Civil Disobedience and Certain Intentional Torts

Currentness

This chapter does not apply to a claim:

(1) based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or
rebellion; or

(2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary
action by school authorities.

Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (163)

V. T. C. A., Civil Practice & Remedies Code § 101.057, TX CIV PRAC & REM § 101.057
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
TAB #4
City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

out of use of handcuffs during arrest, conflicted
with other decisions, and therefore Supreme
434 S.W.3d 586
Court had jurisdiction over city's interlocutory
Supreme Court of Texas.
appeal of denial of plea, where several prior
The CITY OF WATAUGA, Petitioner, Court of Appeals decisions, unlike decision
v. in instant case, applied the intentional-tort
Russell GORDON, Respondent. exception to bar personal-injury claims arising
from a police officer's use of tangible property
No. 13–0012. | Argued Dec. during arrest. V.T.C.A., Government Code §§
4, 2013. | Decided June 6, 2014. 22.001(e), 22.225(c, e).

Synopsis 1 Cases that cite this headnote
Background: Arrestee brought action against city based on
police officer's use of handcuffs during arrest. City entered [3] Municipal Corporations
plea to the jurisdiction. The 17th District Court, Tarrant Nature and grounds of liability
County, Melody Wilkinson, J., denied city's plea, and city
A city, as a political subdivision of the state,
appealed. The Court of Appeals, 389 S.W.3d 604, affirmed.
is protected from tort claims by governmental
City petitioned for review.
immunity.

1 Cases that cite this headnote
[Holding:] The Supreme Court, Devine, J., held that
arrestee's action was an action for battery rather than one [4] Municipal Corporations
for negligence, and thus city had not waived governmental Nature and grounds of liability
immunity to action.
Governmental immunity generally protects
municipalities and other state subdivisions from
Reversed and rendered. suit unless the immunity has been waived by the
constitution or state law.

Cases that cite this headnote
West Headnotes (10)
[5] Municipal Corporations
[1] Appeal and Error Capacity to sue or be sued in general
Necessity of final determination States
As a general rule, appeals may be taken only Liability and Consent of State to Be Sued in
from final judgments. General
Sovereign immunity protects the State, state
1 Cases that cite this headnote agencies, and their officers, while governmental
immunity protects subdivisions of the State,
[2] Courts including municipalities and school districts.
Review by or certificate to Supreme Court
Cases that cite this headnote
by Court of Civil Appeals of questions where
its decision conflicts with or overrules that of
another Court of Civil Appeals or that of the [6] Municipal Corporations
Supreme Court Nature and grounds of liability of
Decision of Court of Appeals below, affirming municipality as proprietor
denial of city's plea to jurisdiction made in To sue a governmental unit under the Texas Tort
response to arrestee's action against city arising Claim Act's limited waiver, a plaintiff may allege

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

an injury caused by negligently using tangible
personal property, but to be viable, the claim [10] Assault and Battery
cannot arise out of an intentional tort. V.T.C.A., Intent and malice
Civil Practice & Remedies Code §§ 101.021(2), Liability in battery extends to harmful bodily
101.057. contacts even though only offensive contacts
were intended.
3 Cases that cite this headnote
1 Cases that cite this headnote

[7] Municipal Corporations
Police and fire
Arrestee's action against city, asserting injury
Attorneys and Law Firms
from police officer's use of allegedly overly-
tight handcuffs during arrest, was an action *587 Ramon G. Viada, III, Viada & Strayer, Woodlands,
for battery rather than one for negligence, TX, for Amicus Curiae.
and thus city had not waived governmental
immunity to action, despite argument that Joe C. Tooley, Law Office of Joe C. Tooley, Rockwall, TX,
arrestee's compliance during arrest constituted for Petitioner.
consent to what otherwise would have been a
Kenneth Peter Trosclair, Wilson, Trosclair & Lovins, PLLC,
battery; a specific intent to injure was not an
Dallas, TX, for Respondent.
essential element of a battery, and gravamen of
complaint was that officer used excessive force.
Opinion
V.T.C.A., Civil Practice & Remedies Code §
101.057(2). Justice DEVINE delivered the opinion of the Court.

5 Cases that cite this headnote The Texas Tort Claims Act waives governmental immunity
for, among other things, personal injuries allegedly caused
by the negligent use of property. TEX. CIV. PRAC. &
[8] Assault and Battery
REM.CODE § 101.021. The Act does not waive immunity
Intent and malice
when the claim arises out of an intentional tort, however.
Although a specific intent to inflict injury is
Id. § 101.057(2). The question in this interlocutory appeal
without question an intentional tort, a specific
is whether an arrestee's lawsuit against a city for injuries,
intent to injure is not an essential element of a
accidentally *588 caused by a police officer's use of
battery. Restatement (Second) of Torts § 16.
handcuffs, states a battery or negligence claim. The court
Cases that cite this headnote of appeals concluded that the underlying claim was for
negligence and therefore affirmed the trial court's order,
denying the city's governmental-immunity plea. 389 S.W.3d
[9] Assault and Battery 604 (Tex.App.-Fort Worth 2012). We conclude, however,
Nature and Elements of Assault and Battery that the underlying claim is for battery. Because the
Assault and Battery city's governmental immunity has not been waived for this
Intent and malice intentional tort, we reverse the court of appeals' judgment and
A battery does not require a physical injury, dismiss the case.
and thus it follows that an intentional physical
injury is also not required; in fact, even a harmful
or offensive contact that is intended to help or I. Background
please the plaintiff can be actionable as a battery.
Restatement (Second) of Torts § 16. City of Watauga police officers stopped Russell Gordon on
suspicion of drunk driving and asked him to submit to a
3 Cases that cite this headnote sobriety test. Gordon declined. He was then arrested without
resistance. Gordon was handcuffed at the scene and again

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

later when transported from a nearby police station to the 146 S.W.3d 334 (Tex.App.-Dallas 2004, no pet.) (holding
city jail. Gordon asserts that on both occasions he informed immunity not waived for intentional use of pepper spray,
the officers that his handcuffs were too tight but that his handcuffs, and police service dog); Morgan v. City of Alvin,
complaints were ignored. 175 S.W.3d 408 (Tex.App.-Houston [1st Dist.] 2004, no
pet.) (holding immunity not waived for officer's physical
Gordon subsequently sued the City for injuries to his assault of arrestee); *589 City of Laredo v. Nuno, 94
wrists allegedly caused by the officers' negligent use of S.W.3d 786 (Tex.App.-San Antonio 2002, no pet.) (holding
property—the handcuffs. The City responded with a plea immunity not waived for intentional use of handcuffs
to the jurisdiction, asserting immunity from suit under the and excessive force in arrest). A conflict in decisions is
intentional-tort exception to the Tort Claims Act's sovereign- defined as an “inconsistency ... that should be clarified to
immunity waiver. TEX. CIV. PRAC. & REM.CODE § remove unnecessary uncertainty in the law and unfairness to
101.057(2). The trial court denied the City's plea. The City litigants.” TEX. GOV'T CODE § 22.001(e); § 22.225(e). We
appealed. See TEX. CIV. PRAC. & REM.CODE § 51.014(a) agree that such a conflict is presented here and turn to the
(8) (permitting interlocutory appeal of an order granting or issue of the City's immunity.
denying a plea to the jurisdiction by a governmental unit).
The court of appeals affirmed, concluding that Gordon's
pleadings asserted a negligence claim and that the City's plea
III. The Underlying Claim: Negligence or Battery
and jurisdictional evidence did not show an exception to the
applicable immunity waiver. 389 S.W.3d at 607–08. [3] [4] [5] The City of Watauga, as a political subdivision
of the State, is protected from tort claims by governmental
immunity. Dallas Cnty. Mental Health & Mental Retardation
II. Jurisdiction v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Governmental
immunity 1 generally protects municipalities and other state
[1] [2] Because this is an interlocutory appeal, we begin subdivisions from suit unless the immunity has been waived
with the issue of our own jurisdiction. As a general rule, by the constitution or state law. Univ. of Tex. Med. Branch
appeals may be taken only from final judgments. Lehmann v. at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). The
Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Exceptions Texas Tort Claims Act provides a limited waiver of this
to this general rule are provided by statutes that specifically immunity and is asserted as the basis for the underlying suit
authorize interlocutory appeals of particular orders. See, here.
e.g., TEX. CIV. PRAC. & REM.CODE § 51.014 (listing
a number of interlocutory orders that may be appealed). [6] In pertinent part, the Tort Claims Act waives immunity
Another general rule provides for finality of these appeals for injuries caused by the negligent use of tangible property,
in the courts of appeals. TEX. GOV'T CODE § 22.225(b) stating:
(3) (providing generally that petition for review is not
allowed to the supreme court in an interlocutory appeal). But A governmental unit in the state is
again, exceptions exist. One such exception provides that the liable for ... personal injury and death
supreme court is not deprived of jurisdiction to consider an so caused by a condition or use of
interlocutory appeal when a justice dissents in the court of tangible personal or real property if
appeals or when the court of appeals' decision conflicts with the governmental unit would, were
a prior decision. Id. § 22.225(c). it a private person, be liable to the
claimant according to Texas law.
The City here asserts conflicts jurisdiction, arguing that the
decision in this case conflicts with several prior decisions TEX. CIV. PRAC. & REM.CODE § 101.021(2). This limited
that, unlike this case, apply the intentional-tort exception to waiver does not apply to intentional torts, however. Id. §
bar personal-injury claims arising from a police officer's use 101.057. Thus, to sue a governmental unit under the Act's
of tangible property during an arrest. See, e.g., Harris Cnty. limited waiver, a plaintiff may allege an injury caused
v. Cabazos, 177 S.W.3d 105 (Tex.App.-Houston [1st Dist.] by negligently using tangible personal property, York, 871
2005, no pet.) (holding immunity not waived for officer's S.W.2d at 178 n. 5, but to be viable, the claim cannot arise
intentional discharge of pistol); City of Garland v. Rivera,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

out of an intentional tort, Tex. Dep't of Pub. Safety v. Petta, contact when they arrested Gordon, the City relies on the
44 S.W.3d 575, 580 (Tex.2001). latter form of battery, maintaining that the arrest constituted
an offensive bodily contact.
The City maintains that its immunity has not been waived
because Gordon's underlying claim arises from an intentional In Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627
tort, a battery, also sometimes referred to as an assault. Texas (Tex.1967), we recognized this type of battery. In that case,
courts have recognized private causes of action for both the manager of a motel restaurant snatched a plate from the
assault and battery for well over a century. See Tex. Dep't hands of a black man as he stood in a buffet line, shouting
of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d that he would not be served. Fisher, 424 S.W.2d at 628–29.
112, 115–116 (Tex.2011) (citing Sargent v. Carnes, 84 Tex. We held the manager's conduct to be actionable as a battery.
156, 19 S.W. 378, 378 (1892)). These two intentional torts Id. at 630. Relying on the Restatement, we noted that it was
are related, but conceptually distinct. 4 J. HADLEY EDGAR, the offensive nature of the contact, not its extent, that made
JR., & JAMES B. SALES, TEXAS TORTS & REMEDIES § the contact actionable: “Personal indignity is the essence of
50.01[1] at 50–3 (2013). An assault occurs when a person is in an action for battery; and consequently the defendant is liable
apprehension of imminent bodily contact, whereas a battery is not only for contacts which do actual physical harm, but
committed when an individual actually sustains a harmful or also for those which are offensive and insulting.” Id. (citing
offensive contact to his or her person. See generally, 1 DAN RESTATEMENT (SECOND) OF TORTSS § 18); see also
B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, Waffle House, 313 S.W.3d at 802–03 (recognizing continued
THE LAW OF TORTS §§ 33–40 (2d ed.2012) (hereafter viability of offensive-contact batteries).
“THE LAW OF TORTS”).

Today, the Texas Penal Code combines common-law
A. Consent
concepts of assault and battery under its definition of
“assault.” TEX. PEN.CODE § 22.01(a). Reliance on the
The court of appeals concluded that Gordon's pleadings 3
criminal-assault statute has led several Texas civil courts to
asserted a claim for negligence *591 instead of battery
meld common-law concepts of assault and battery under the
because, as Gordon alleged, the officers did not intend to
rubric of assault. 2 This statute provides *590 that a person injure him and he did not resist arrest. 389 S.W.3d at 607.
commits an assault if the person either: The court reasoned that Gordon's compliance indicated his
consent to the arrest, thereby negating the contact's offensive
nature. See id. (noting that “the officers' application of the
(1) intentionally, knowingly, or recklessly causes bodily
handcuffs did not involve an offensive touching or contact of
injury to another ...;
Gordon by the officers as required to constitute the intentional
(2) intentionally or knowingly threatens another with tort of assault or battery”). The court further suggested that
imminent bodily injury ...; or Gordon's consent distinguished the case from other cases
involving alleged excessive force or other offensive contact
(3) intentionally or knowingly causes physical contact during an arrest. Id. at 607–08 (citing cases).
with another when he or she knows or should reasonably
believe that the other will regard the contact as offensive The City, of course, disagrees with the court's analysis,
or provocative. arguing that Gordon's compliance was not consent in any
relevant legal sense. The City submits that Gordon did not
TEX. PEN.CODE § 22.01(a). volunteer to be arrested because he had no choice. See,
The statute's second alternative definition mirrors the e.g., TEX. PEN.CODE §§ 38.03–.04 (criminalizing resisting
traditional notion of common-law assault, while the first and arrest). Moreover, the City argues that Gordon clearly did
last alternatives correspond to separate forms of common-law not consent to have the handcuffs applied too tightly, else he
battery. The Second Restatement of Torts similarly identifies would have no claim under any liability theory.
two forms of battery: one form that results in harmful bodily
contact and another that results in offensive bodily contact.
Several amici 4 support the City's position, arguing that
RESTATEMENT (SECOND) OF TORTS §§ 13, 18 (1965).
using restraints on an arrestee is undoubtedly offensive to a
Because its police officers did not intend any harmful bodily
reasonable sense of personal dignity and technically a battery

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City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

in the absence of privilege. Amici point to the Restatement, that any injury here was accidental, it does not agree that a
which recognizes that an arrest “usually involves conduct worker's compensation case like Reed Tool has any relevance
which, unless privileged, is an ‘assault’ or ‘battery’ ” but to the City's immunity claim.
that where the privilege exists “it justifies not only the
confinement but also any conduct which is reasonably In Reed Tool, an employee argued that the Texas Worker's
necessary to effect the arrest.” RESTATEMENT (SECOND) Compensation Act should not limit his recovery because
OF TORTSS § 118, cmt. b (1965). his employer intentionally caused his injury. The employee
maintained that his employer exhibited that intent by willfully
We agree that Gordon's compliance during the arrest was providing an unsafe workplace. Id. at 405. In holding that
not legal consent to what otherwise would have been a the employee's injury was not intentional, we reasoned that
battery. Preeminent tort authorities have noted that “[a]s to the failure to furnish a safe workplace was not the kind of
false imprisonment or battery, it is clear that yielding to ... actual intention to injure that robs the injury of its accidental
the assertion of legal authority ... must be treated as no character and thus avoids the exclusive remedy provision
consent at all, but submission against the plaintiff's will ...” of the worker's compensation act. Id. at 406. Distinguishing
W. KEETON, D. DOBBS, R. KEETON, & D. OWEN, intentional injuries from accidents, we observed that an
PROSSER & KEETON ON THE LAW OF TORTS, 121 (5th employer's toleration of a dangerous condition might set
ed.1984). Even were we to agree that Gordon's compliance the stage for an accidental injury but was not a “deliberate
constituted consent to reasonable force, his pleadings indicate infliction of harm comparable to an intentional left jab to
that the police exceeded that consent by applying the cuffs the chin.” Id. at 407 (quoting 2A A. LARSON, THE LAW
with excessive force. OF WORKER'S COMPENSATION § 69.13 (1982)). In line
with that, we noted that “direct assaults by an employer on
Consent to contact “negatives the wrongful element of the an employee” would fall within the act's intentional injury
defendant's act, and prevents the existence of a tort.” Id. exception, elaborating further that the fundamental difference
at 112; see also Smith v. Holley, 827 S.W.2d 433, 437 between accidental and intentional injuries was “the specific
n. 3 (Tex.App.-San Antonio 1992, writ denied) (quoting intent to inflict injury.” Id. at 406.
PROSSER & KEETON). But exceeding consent makes
the tortfeasor liable for the excess. See RESTATEMENT [8] [9] We agree with the City here that the distinction
(SECOND) OF TORTS § 892A(4) (1965). Gordon's drawn in Reed Tool between intentional and accidental
pleadings assert that he protested repeatedly that the injuries is not particularly helpful in distinguishing a battery
handcuffs were too tight and causing him pain, thus plainly from negligence. Although a specific intent to inflict injury
terminating any assumed consent. The court of appeals' is without question an intentional tort, and many batteries
reliance on Gordon's “consent” therefore fails to distinguish are of this type, a specific intent to injure is not an essential
this case from other cases that have applied the Tort Claims element of a battery. 5 As already discussed, a battery does
Act's intentional-tort exception to arrests involving excessive- not require a physical injury, and thus it follows that an
force allegations. See, e.g., Morgan, 175 S.W.3d at 418;
intentional physical injury is also not required. 6 In fact, even
Rivera, 146 S.W.3d at 337–38; Nuno, 94 S.W.3d at 789.
a harmful or offensive contact that is intended to help or
please the plaintiff can be actionable as a battery. 7 According
to the Restatement:
*592 B. Intentional Tort or Unintended Injury

[7] Gordon argues that his case is different from other cases If an act is done with the intention of inflicting upon another
involving excessive force in that the police here did not intend an offensive but not a harmful bodily contact or of putting
to injure him. Quoting from Reed Tool Co. v. Copelin, Gordon another in apprehension of either a harmful or offensive
further submits that the “fundamental difference” between bodily contact, and *593 such act causes a bodily contact
a negligent injury and an intentional injury is the “specific to the other, the actor is liable to the other for a battery ...
intent to inflict injury.” 689 S.W.2d 404, 406 (Tex.1985). although the act was not done with the intention of bringing
Gordon reasons that, if a specific intent to inflict injury is about the resulting bodily harm.
an intentional tort, an unintended or accidental injury must RESTATEMENT (SECOND) OF TORTS § 16 (1965).
conversely result from negligence. Although the City agrees

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City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

[10] That the defendant intends “bodily contact that is having ended at the point where
‘offensive’ ” is enough, then. 1 THE LAW OF TORTS § 33 excessive force began. To instruct in
at 81; accord Fisher, 424 S.W.2d at 630. Liability in battery such circumstances on a separate and
moreover extends to harmful bodily contacts even though distinct tort of negligence is not only
only offensive contacts were intended. 8 Thus, while we doctrinally unsound but a potential
agree that intentional injuries are by definition a consequence source of jury confusion.
of intentional torts, we do not agree with the notion that
District of Columbia v. Chinn, 839 A.2d 701, 707 (D.C.2003).
accidental injuries are never a consequence.
We agree that when an arrest, lawful in its inception, escalates
into excessive-force allegations, the claim is for battery alone.

IV. Excessive Force and the Texas Tort Claims Act The court of appeals in this case is not the first Texas court
to conclude that allegations of unintended injury during an
The gravamen of Gordon's complaint against the City is that arrest state a negligence claim. See, e.g., City of Lubbock v.
its police officers used excessive force in effecting his arrest. Nunez, 279 S.W.3d 739, 742–43 (Tex.App.-Amarillo 2007,
Claims of excessive force in the context of a lawful arrest pet. granted & dism'd by agr.) (concluding that the death of
arise out of a battery rather than negligence, whether the an uncooperative suspect caused by a police officer's repeated
excessive force was intended or not. See City of San Antonio use of a taser was unintentional and consequently the result
v. Dunn, 796 S.W.2d 258, 261 (Tex.App.-San Antonio 1990, of negligence). But again, we *594 agree with Chinn that
writ denied) (noting that injuries caused by excessively tight such a conclusion is “doctrinally unsound.” Chinn, 839 A.2d
handcuffing “certainly cannot be attributed to the City as at 707. The actions of a police officer in making an arrest
negligence”); Cameron Cnty. v. Ortega, 291 S.W.3d 495, necessarily involve a battery, although the conduct may not
499 (Tex.App.-Corpus Christi 2009, no pet.) (allegations be actionable because of privilege. Love v. City of Clinton,
that deputy was negligent in his use of handcuffs and used 37 Ohio St.3d 98, 524 N.E.2d 166, 167 n. 3 (Ohio 1988);
excessive force held indistinguishable from assault as defined cf. Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1209
in the penal code). The District of Columbia Court of Appeals (10th Cir.2006) (applying New Mexico law to hold that use of
has explained the relationship between negligence and battery handcuffs in a pranking incident is some evidence of contact
in this context: that “offends a reasonable sense of personal dignity”). The
officer is privileged to use reasonable force. Petta, 44 S.W.3d
While it may be, as the trial court
at 579. But a police officer's mistaken or accidental use of
here noted, that the officers may
more force than reasonably necessary to make an arrest still
have mistakenly believed that they
“arises out of” the battery claim. Dunn, 796 S.W.2d at 261.
needed to exert the amount of force
“As the saying goes, there is no such thing as a negligent
that they did, that does not affect
battery, since battery is defined to require an intentional
the intentionality of the initial action
touching without consent not a negligent one.” 1 THE LAW
or the objective excessiveness of the
OF TORTS § 31 at 77.
force. An unwanted touching may in
its inception be intentional, a battery,
The Texas Tort Claims Act waives governmental immunity
or accidental, possibly negligent. But
for certain negligent conduct, but it does not waive immunity
once it is found to be intentional, a
for claims arising out of intentional torts, such as battery.
battery tortfeasor is liable for the full
TEX. CIV. PRAC. & REM.CODE § 101.057(2). Because
range of consequences, intended or
Gordon alleges that the police used excessive force in his
not, including harm and transferred
arrest, a claim that arises out of a battery, his pleadings
liability. [citation omitted]. Therefore,
do not state a claim for which governmental immunity has
where the excessive force is the
been waived under the Tort Claims Act. We accordingly
product of a battery, an unwanted
reverse the court of appeals' judgment and render judgment
touching inherent in any arrest, which
dismissing the case.
escalates in an unbroken manner into
excessive force, the cause of action
is a battery alone, with the privilege

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
City of Watauga v. Gordon, 434 S.W.3d 586 (2014)
57 Tex. Sup. Ct. J. 683

All Citations

434 S.W.3d 586, 57 Tex. Sup. Ct. J. 683

Footnotes
1 “Sovereign immunity protects the State, state agencies, and their officers, while governmental immunity protects
subdivisions of the State, including municipalities and school districts.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 655 n. 2 (Tex.2008).
2 See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n. 4 (Tex.2010) (noting several courts' observation that the
elements of civil and criminal assault are the same); Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex.App.-Austin 2000, pet.
denied) (noting that elements of assault are the same in both civil and criminal cases); Hogenson v. Williams, 542 S.W.2d
456, 458 (Tex.Civ.App.-Texarkana 1976, no writ) (same); see also Comm. On Pattern Jury Charges, Texas Pattern Jury
Charges—General Negligence § 6.6 (State Bar of Texas 2006) (using Penal Code's definition of assault in civil cases);
but see Miller ex. rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex.2003) (referring to a physician's act of operating
without consent as a battery).
3 The court of appeals summarizes the substance of Gordon's pleadings in the following footnote:
[O]ne evening City of Watauga police pulled him over on suspicion of driving while intoxicated; after Gordon politely
refused to perform field sobriety tests, the officers told him that he would be placed under arrest and handcuffed;
Gordon “consented to the arrest and allowed the officer to place the cuffs on him without any resistance”; Gordon
repeatedly informed the officer that the handcuffs were too tight and were hurting him, but the officer did not check the
tightness of the handcuffs. Gordon pleaded that at the police station, after he had refused to perform any additional
sobriety tests, he was told that he would be handcuffed and taken to jail. Gordon again consented, and the placement
of handcuffs occurred without incident. Gordon told the officers that the handcuffs were too tight and were causing
him pain. Again, the officers did not check or loosen the handcuffs. Gordon pleaded a negligence claim, pleading
that the officers acted negligently in their use of tangible personal property, specifically the use of handcuffs, in one
or all of the following ways: by failing to properly use the handcuffs as designed; by failing to follow proper policies
and procedures as to the proper use of handcuffs; and by applying the handcuffs on him in a manner that was too
tight on his wrists.
389 S.W.3d at 605 n. 1.
4 Amici include the Texas Municipal League, Texas City Attorney's Association, Texas Association of Counties, and Texas
Association of Counties Risk Management Pool.
5 Fisher, 424 S.W.2d at 629–30; see also Hall v. Sonic Drive–In of Angleton, Inc., 177 S.W.3d 636, 650 (Tex.App.-Houston
[1st Dist.] 2005, pet. denied) (rejecting argument that an intent to injure is the only way to prevail on an assault claim).
6 See W. KEETON, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON TORTS 36–37 (5th ed. 1984)
(“The defendant may be liable although ... honestly believing that the act would not injure the plaintiff.”).
7 See id. at 41–42 (“[T]he Defendant may be liable even when intending only a joke, or even a compliment, as where an
unappreciated kiss is bestowed without consent or a misguided effort is made to render assistance”); see also Gravis v.
Physicians & Surgeons Hosp., 427 S.W.2d 310, 311 (Tex.1968) (noting that battery action lies against physician who,
with intent to cure the plaintiff, operated without plaintiff's consent).
8 See, e.g., Caudle v. Betts, 512 So.2d 389, 389 (La.1987) (holding that liability in battery extends to consequences which
the defendant did not intend or even reasonably foresaw); see also 1 THE LAW OF TORTS § 45 (discussing the concept
of extended liability or transferred intent applicable in battery but not in negligence).

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