COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00402-CV
RODERICK LYDELL BONNER APPELLANT
V.
TARRANT COUNTY, TEXAS APPELLEE
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 342-237971-09
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MEMORANDUM OPINION1
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Appellant Roderick Lydell Bonner, pro se, appeals from the trial court’s
grant of summary judgment on immunity grounds for Appellee Tarrant County,
Texas (the County). Because we hold that the County did not establish its
entitlement to immunity, we reverse.
1
See Tex. R. App. P. 47.4.
I. Background Facts
Bonner sued the County for injuries he sustained when a chair he sat in at
the Tarrant County jail collapsed. At the time, Bonner was incarcerated in the
jail. Bonner alleged that he went to see a nurse for an evaluation, and she told
him to sit in the chair, which collapsed with him. Bonner asserted that the County
had actual knowledge of the condition of the personal property because a
sheriff’s deputy had broken the chair prior to Bonner’s use of it.
The County filed a motion for summary judgment raising immunity from
liability under code of criminal procedure article 42.20(a) and under government
code section 497.096. See Tex. Gov’t Code Ann. § 497.096 (West 2012); Tex.
Code Crim. Proc. Ann. art. 42.20 (West 2006). The County attached the affidavit
and excerpts from the deposition testimony of Officer Robert Barham, a detention
officer at the jail. Officer Barham explained how he broke the chair that Bonner
later sat in. The chair was the officers’ chair for the pod at the unit. He sat in the
chair, raised up slightly to scoot the chair forward, and sat back down. When he
sat back down, the back right chair leg “folded out from underneath [him].”
Officer Barham reported the incident to his supervisor, who told him to write a
report and move the chair to the jail’s “multipurpose room.” Officer Barham
explained in his deposition that the room was used if a fight broke out among
inmates and inmates needed to be temporarily separated. The room was also
used to store supplies. The room was also used as “the diabetic room.”
According to Officer Barham, “[t]he nurses would go in there and set up shop in
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that room due to the fact that the pod had over 30 some-odd diabetics. And
some nurses would allow the inmates to sit. Some nurses would not.”
In his affidavit, Officer Barham stated that when the chair collapsed on him,
he was “uninjured at the time except for [my] wounded pride.” He believed his
supervisor would contact the appropriate person to have the chair disposed of
and that even if someone did sit in the chair while it was in the Multipurpose
Room, Officer Barham did not expect the person to be hurt because he was
uninjured when it collapsed on him.
The County further attached to its motion excerpts from the deposition of
Caroline Davis-Ette, the nurse who was in the Multipurpose Room when the chair
collapsed on Bonner. She testified that she did not notice that the chair was
damaged before Bonner sat in it, nor did she see any notice on the chair that it
was broken. She stated that she did not remember if she instructed Bonner to sit
down.
Based on this evidence, the County argued it was immune under article
42.20(a) of the code of criminal procedure because it had shown as a matter of
law that its employees did not act with conscious indifference to the safety of
others. It also asserted immunity under section 497.096 of the government code
because it had shown as a matter of law that its employees did not act
intentionally, through willful or wanton negligence, or with conscious indifference
or reckless disregard for the safety of others.
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The trial court granted the County’s motion for summary judgment without
specifying the basis for its ruling. Bonner now appeals.
II. Standard of Review
Whether a court has subject matter jurisdiction is a question of law. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a
government entity challenges the existence of jurisdictional facts, “we consider
relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised.” Id. at 227. “If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea to the
jurisdiction” and must leave resolution of the issue to the fact finder. Id. at 227–
28. The jurisdictional issue is a question of law, however, if the relevant
evidence is undisputed or fails to raise a fact issue. Id. at 228.
III. Analysis
Bonner raises ten issues on appeal. We address only his second issue
because it is dispositive.
A. Article 42.20 Does Not Provide Immunity to the County.
Bonner argues in his second issue that article 42.20 of the code of criminal
procedure applies to inmate programs and treatment activities but not to the
circumstances that led to his alleged injuries. Bonner is correct.
Article 42.20(a) applies to certain categories of government employees
and officials, including employees of a community supervision and corrections
department or a community corrections facility; a sheriff or employees of a
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sheriff’s department; and county employees. Tex. Code Crim. Proc. Ann. art.
42.20(c). Under article 42.20(a), such employees and officials, as well as the
governmental entity they serve, are not liable for damages for acts or failures to
act in connection with a community service program or work program or in
connection with inmate work, educational, or treatment activities. Id.
Under the article’s terms, it applies only when the complained-of act or
failure to act is in connection with a community service program or inmate
activity. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,
865 (Tex. 1999) (“If the meaning of the statutory language is unambiguous, we
adopt, with few exceptions, the interpretation supported by the plain meaning of
the provision’s words and terms.”). Here, Bonner was at the jail receiving
medical treatment from a nurse at the time of his injury, not participating in a
community service program, a work program, inmate work, or an educational
activity. The only inmate activity alleged by the County was “treatment activity.”
Although the nurse’s treatment of Bonner could conceivably be categorized as a
“treatment activity” as that term is used in the statute, Bonner did not allege an
injury arising from an act or failure to act “in connection with” such treatment
activity. The act or failure to act he complains of—Officer Barham’s placing the
broken chair in the room without a warning—was not done “in connection with” a
treatment activity merely because the nurse saw Bonner in that room. The room
was not part of a dispensary or medical area of the jail. While the nurse saw
inmates in that room for treatment, the room was also used for storage and for
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separating inmates. Officer Barham placed the chair in the locked room to store
it out of the way before its disposal, expecting his supervisor to see that it was
removed. The nurse did not see inmates in the room until four days later. While
Bonner’s injury had a connection to treatment activity in that the reason he went
into the room with the chair was to see the nurse, Officer Barham’s act of placing
the chair in the room had no relation to the nurse’s eventual provision of
treatment. Thus, article 42.20 does not apply to Bonner’s claim.
B. Section 497.096 Does Not Provide Immunity to the County.
Although the bulk of Bonner’s argument under his second issue addresses
article 42.20, his issue references section 497.096 of the government code as
well, and we therefore construe the issue to address that section.2
Section 497.096 provides
An . . . employee of a sheriff’s department, county commissioner,
county employee, [or] employee of a community corrections and
supervision department . . . is not liable for damages arising from an
act or failure to act in connection with . . . an inmate or offender
programmatic or nonprogrammatic activity, including work,
community service, educational, and treatment activities, if the act or
failure to act was not intentional, wilfully or wantonly negligent, or
performed with conscious indifference or reckless disregard for the
safety of others.
2
Recognizing that Bonner is proceeding pro se, we are mindful of our duty
to construe his brief liberally. See Tex. R. App. P. 38.9 (briefing rules should be
construed liberally); Dominey v. Unknown Heirs & Legal Representatives of
Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no pet.); see also
Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 78 n.3 (Tex. App. —Texarkana
2008, pet. denied) (“We review and evaluate pro se pleadings with liberality and
patience.”).
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Tex. Gov’t Code Ann. § 497.096. If section 497.096 applies to a County officer
or employee, the County is likewise immune. See Tex. Dep’t of Criminal Justice
v. Hetzler, No. 12-16-00002-CV, 2017 WL 2665659, at *3 (Tex. App.—Tyler June
21, 2017, no pet.) (mem. op.).
Like article 42.20, section 497.096 does not apply to Bonner’s claim. He
did not allege damages arising from an act or failure to act in connection with a
programmatic or nonprogrammatic activity. See Doyal v. Tex. Dep’t of Criminal
Justice-Institutional Div., 276 S.W.3d 530, 537 (Tex. App.—Waco 2008, no pet.)
(holding that section 497.096 did not apply to the plaintiff inmate’s claims based
on an injury he received when a cell door was closed on his hand because
nothing in his pleadings indicated that the officer’s alleged negligence was in
connection with an inmate’s community service or programmatic or
nonprogrammatic activity).
The County argues in its motion for summary judgment that this section
applies to any inmate activities. We disagree. Interpreting the plain language of
section 497.096, “inmate activity” must mean something other than anything that
happens in a jail or prison. See State Dep’t of Highways & Pub. Transp. v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (when construing a statute, the
court’s job is to begin with the “plain and common meaning of the statute’s
words” to give effect to the Legislature’s intent) (citations and internal quotation
marks omitted)). Otherwise the statute would merely provide that county
employees are not liable for damages arising from any act or failure to act in a jail
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or prison. Instead, section 497.096 applies when the act or failure to act that
causes the damages complained of occurs in connection with an inmate activity.
In this case, that act or failure to act involved the placement of the chair
and the failure to warn of its condition, not Bonner’s medical treatment. Officer
Barham moved the chair because he knew it needed to be disposed of and he
did not want others to sit in it. He therefore moved the chair from the officers’
desk area and into the locked Multipurpose Room, which inmates could not
access without an officer’s permission. Barham’s placing the chair in the
Multipurpose Room, and his and his supervisor’s failure to warn others about the
condition of the chair, were not in connection with an “inmate activity.”
Accordingly, the section does not provide immunity to the County. We sustain
Bonner’s second issue.
IV. Conclusion
Having sustained Bonner’s second issue, we reverse the trial court’s
summary judgment for the County and remand this case to the trial court for
further proceedings.
Bonner filed various motions during the pendency of this appeal. All
motions not previously ruled on are hereby denied.
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/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.
DELIVERED: January 18, 2018
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