IN THE SUPREME COURT OF TEXAS
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NO. 15-0932
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AMERICAN K-9 DETECTION SERVICES, LLC AND
HILL COUNTRY DOG CENTER, LLC,
PETITIONERS,
v.
LATASHA FREEMAN, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
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JUSTICE DEVINE, joined by JUSTICE GUZMAN, dissenting.
Standards of review dictate appellate review. The standard here is extremely deferential to
LaTasha Freeman, the nonmovant: we view the facts and pleadings in the light most favorable to
her and must deny American K-9 Detection Services, LLC’s (AMK9’s) plea if a fact question about
jurisdiction exists that also implicates the case’s merits. See Tex. Dep’t of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004). This includes when jurisdiction depends on a fact
question about proximate cause. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922,
929 (Tex. 2015) (denying plea to the jurisdiction when the allegations “generate[d] a fact issue”
about “proximate cause”). AMK9’s plea is based on its allegation that the Army at least partly
caused Freeman’s injuries; but Freeman alleges that AMK9, not the Army, proximately caused her
injuries. This is a classic fact-question.
So long as this fact question remains, we cannot grant AMK9’s plea. Yet the Court flips the
standard of review on its head by viewing the evidence in the light most favorable to AMK9, the
movant. The Court does this through heavy reliance on the pronouncements—some of which are
dicta—of several federal courts. I am unconvinced by their reasoning. The U.S. Supreme Court has
not endorsed their views on the political-question doctrine in proportionate-responsibility systems,
and we are not otherwise bound by their holdings. I would instead hold that when a political-
question doctrine claim depends on a causal finding, we cannot dismiss the suit while causation is
disputed. Because the Court’s dismissal contravenes well-established plea-to-the-jurisdiction
jurisprudence, and because no other ground AMK9 or Hill Country Dog Center, LLC asserts can
sustain the plea, I dissent.
I. Jurisdiction over Freeman’s claims against American K-9 Detection Services, LLC
A. Political-Question Doctrine
AMK9 argues in its plea that we lack jurisdiction because the Army at least partly caused
Freeman’s injuries, thereby implicating the political-question doctrine. A plea to the jurisdiction
is a dilatory plea that defeats a cause of action whether the claims have merit or not. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A defendant can use a plea to challenge
jurisdiction based on the sufficiency of the plaintiff’s pleadings or on the existence of jurisdictional
facts. Miranda, 133 S.W.3d at 226. AMK9 challenges the jurisdictional facts. “[W]hether
undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is . . . a question of
law” that we review de novo. Id.; see also Tex. Nat’l Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). When the evidence is undisputed or does not raise a fact question
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about jurisdiction, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228.
But when the evidence (1) creates a fact question about jurisdiction and (2) implicates the case’s
merits, “the trial court cannot grant the plea” and the fact-finder must resolve the fact question. Id.
at 227-28. In such situations, we determine whether a fact question exists by taking all evidence
favorable to the nonmovant as true, indulging every reasonable inference and resolving any doubts
in her favor. Id. at 228.
This review essentially mirrors our summary-judgment standard: after the defendant presents
evidence that the trial court lacks jurisdiction—and when such evidence also implicates the case’s
merits—the plaintiff must show only that a jurisdictional fact is disputed to survive the plea. Id.
This standard of review saves plaintiffs from having to “put on their case simply to establish
jurisdiction” in response to a dilatory plea, which “should be decided without delving into the
[case’s] merits.” Bland, 34 S.W.3d at 554. Otherwise, a plaintiff like Freeman “would be required
to try [her] entire case” just to show jurisdiction. Id.
Here, Freeman alleges that AMK9 was negligent for leaving Kallie unattended, not properly
training her or her handler, not keeping her under restraint, and not securing the kennel. Freeman
does not allege that the Army or its kennel design caused her injuries. AMK9 alleges these things.
Thus, Freeman’s allegations dispute that the Army proximately caused her injuries. This proximate-
cause issue is what potentially raises a political question because if the Army caused Freeman’s
injuries, we might have to evaluate the Army’s military decisions as a responsible third-party. The
political-question doctrine, however, bars this suit if and only if a political question—here, the
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Army’s military decisions—is “inextricable from the case.” Baker v. Carr, 369 U.S. 186, 217
(1962).
The elements of proximate cause are cause-in-fact and foreseeability. W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 551 (Tex. 2005). “Because proximate cause is ultimately a question for
a fact-finder,” we must sustain AMK9’s plea if Freeman’s petition “‘creates a fact question’
regarding the causal relationship between [the Army’s conduct] and the alleged injuries.” Ryder,
453 S.W.3d at 929 (quoting Miranda, 133 S.W.3d at 228). AMK9 alleges that it had to use the
Army’s kennels, and that the Army’s failure to place a top on these kennels at least partly caused
Kallie’s escape. Maybe so. But a juror might reasonably infer that, had AMK9 closed every kennel
door, as well as the kennel building’s outer door, the lack of a top would have been causally
irrelevant.
Even if the Army was aware that this design might allow a dog to scale the internal dividers
between kennel pens, that a successful escape was foreseeable to the Army is far from clear. As
Freeman points out, the Army required AMK9 to close all of the kennel’s doors and the kennel was
inside a building. Had AMK9 closed either the kennel’s or building’s doors—as the Army required
it to do—Kallie’s escape attempt would have been futile. That arguably makes the foreseeability
of her escape doubtful. And we resolve doubts in Freeman’s favor. See Miranda, 133 S.W.3d at
228.
Furthermore, a juror could reasonably infer that an escape was as foreseeable to AMK9 as
to the Army. In fact, because AMK9, not the Army, trained and handled Kallie, a juror could
reasonably infer that AMK9 knew better than anyone whether Kallie might escape as she did. By
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indulging every reasonable inference and resolving any doubts in Freeman’s favor, a juror could find
that Kallie’s escape was not foreseeable to the Army and that AMK9’s actions were the escape’s
cause-in-fact.
But no matter who proximately caused Kallie’s escape, a juror could reasonably conclude
that AMK9’s allegedly negligent training was the attack’s sole proximate cause. Freeman alleges
that AMK9 trained Kallie such that she—contrary to the Army’s contractual
specifications—attacked without cause and without being ordered. Viewing these facts favorably
to Freeman, a juror could reasonably conclude that a dog trained to the Army’s specifications
presents no attack threat to people like her. Thus, even if the Army partly caused Kallie’s escape,
a juror could reasonably conclude that an attack was not foreseeable to the Army and that AMK9’s
training was the attack’s cause-in-fact. We must, therefore, conclude that a fact question about
proximate cause exists.
Indulging every reasonable inference and resolving any doubts in Freeman’s favor and taking
all evidence favorable to her as true, a juror could reasonably conclude that AMK9’s actions—and
only AMK9’s actions—caused the alleged attack. See id. at 228. AMK9, of course, disputes this.
It alleges that the Army at least partly caused Kallie’s escape and, therefore, this suit necessarily
requires evaluating sensitive military decisions. We, however, cannot decide that issue while an
underlying causal fact-question exists because that question affects whether the military’s decisions
are “inextricable from the case.” Baker, 369 U.S. at 217. Thus, answering the political-question
doctrine issue now, as the Court does, is premature.
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The Court actually agrees that causation is a disputed fact-question here that can be decided
only by a jury. Ante at ___ (citing Miranda, 133 S.W.3d at 227-28). Nevertheless, the Court is
unmoved by that bar to its judgment. Despite that we cannot determine whether the doctrine is
implicated without first resolving that fact question, the Court retorts that my analysis here, which
simply applies our plea-to-the-jurisdiction standard, makes the doctrine “an irrelevance.” Ante at
___. That is not true. If AMK9 is correct, it might get the suit dismissed under the doctrine, which
is very relevant. We would not reduce the doctrine to an irrelevance by making AMK9 actually
prove the facts of its defense. That makes the doctrine no more irrelevant than in any other suit
where a potentially dispositive defense depends on a fact question that can be determined only
through trial.
Furthermore, the Court’s holding has a worrisome consequence to our jurisprudence. The
holding essentially bars all tort suits where a military contractor—or any other defendant—is able
to muster a mere allegation that a government actor whose decisions are insulated by the political-
question doctrine partly caused the alleged harm. Even if the Court’s view of that doctrine is
otherwise right, its application here throws out cases where unproven, disputed factual allegations
affect whether the doctrine is, in fact, implicated. That, in my view, throws the baby out with the
bathwater.
For example, if a soldier sued a contractor for negligently making a tank hatch contrary to
Army requirements such that it did not open properly, trapping him inside and injuring him, the
contractor could obtain dismissal by merely alleging that the Army at least partly caused the hatch’s
failure. The Army, the contractor might argue, decided to park the tank in an area without a cover,
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and this exposure to the elements caused the hatch to fail. Thus, the Army’s wartime military
decision partly caused the injury, implicating the political-question doctrine. If that truly did cause
the hatch to fail, the contractor might be entitled to dismissal. But if the soldier disputes that the
Army’s actions caused the failure, instead alleging that the contractor’s actions are the sole
proximate cause, this causal fact-question should allow him to survive a plea to the jurisdiction.
Otherwise, we deny all relief even when the soldier’s allegations prove true.
The Court attempts to cabin this slippery slope, but in doing so shows why a jury needs to
resolve the fact question here. The Court states that had “Kallie bit Freeman while being routinely
exercised by her civilian-contractor handler,” the attack “would have had nothing to do with the
military.” Ante at ___. But that does not solve the problem because in that scenario AMK9 has not
alleged that the Army partly caused anything. Based on the Court’s opinion here, AMK9 would be
foolish not to make such an easy-to-manufacture allegation. For example, AMK9 could argue that
the Army partly caused this attack by not providing enclosed yards for exercising these working
dogs, thereby implicating the Army’s equipment decisions. That causal allegation might be without
merit, but that’s the point—so might AMK9’s actual allegation. The problem is that AMK9 is
getting this case dismissed as a matter of law based on a disputed fact-question. The Court’s
scenario does not solve this problem because the scenario does not address this problem. Instead,
the Court’s scenario avoids the issue: how do we handle cases where a defendant’s disputed causal
allegation might implicate a military decision given that the allegation might be wrong? If AMK9
is wrong here, this case, too, has “nothing to do with the military.” Id. That is why a fact-finder
must resolve this fact question.
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Because AMK9’s jurisdictional plea and Freeman’s case on the merits both depend on the
same fact question—whether the Army or AMK9 proximately caused Freeman’s injury—we should
deny AMK9’s plea, leaving this fact question for the fact-finder. See Miranda, 133 S.W.3d at 227-
28.
The foregoing analysis should be enough to deny AMK9’s plea. The Court, however,
effectively side-steps this in holding that AMK9’s proximate-cause defense would require the jury
to impermissibly evaluate the Army’s decisions about the kennel’s design and construction. Ante
at ___. That completely ignores the possibility that the Army might not be a cause at all. That
move, however, is consistent with several federal cases. The Court endorses those cases, but their
reasoning on that point cannot withstand scrutiny.
In Harris v. Kellogg Brown & Root Services, Inc., the Third Circuit held that a sole-
proximate-cause defense would not implicate the political-question doctrine because that dispute
is “simply about who did what.” 724 F.3d 458, 473 (3d Cir. 2013). But the court then concluded
that, in a proportionate-responsibility system, determining whether the military was a proximate
cause (rather than the sole proximate cause) would require a court to impermissibly second-guess
military decisions. Id. at 474. In re KBR, Inc., Burn Pit Litigation, relying on Harris, also held that
a proximate-cause defense does not make a suit nonjusticiable unless the military at least partly
caused the plaintiffs’ injuries and the suit was in a proportionate-responsibility system. 744 F.3d
326, 340-41 (4th Cir. 2014). The Harris court’s explanation for this distinction was that, when
determining partial cause, “there is simply no way to determine damages without evaluating military
decisions” because the fact-finder “cannot decide the respective degrees of fault” between the
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military and the contractor “without evaluating the decisions made by each . . . .” Harris, 724 F.3d
at 474. But that does not explain the distinction.
Rather, this explanation skips a step. It incorrectly assumes that finding that the military
partly caused the injury means finding that the military negligently caused it. The latter might be
a political question, but the former is not. Determining “who did what” does not require second-
guessing any decisions, military or otherwise. See id. at 473. Causal questions are objective, not
normative. Objective questions do not inexplicably become normative just because Texas uses a
proportionate-responsibility system. Holding otherwise conflates the distinction between causation
and negligence.
Negligence assessments require multiple findings. In Texas, a court must find (1) the
existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by that
breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004). No party is ever negligent merely by causing an event; something more is always required.
This is true as a matter of basic tort law. See RESTATEMENT (SECOND) OF TORTS § 281 (1965)
(Statement of the Elements of a Cause of Action for Negligence). A fact-finder also must determine
that the party should have acted otherwise. This determination—whether the party should have
acted as it did—is the potential political question. “[W]ho did what” is not. Harris, 724 F.3d at 473.
Nothing about our proportionate-responsibility system changes that a causal finding does not
second-guess anything. And neither the Court nor its cited authorities explain how it could. Thus,
resolving the factual dispute here—whether the Army or AMK9 proximately caused Freeman’s
injuries—does not raise a political question even if this suit eventually raises one because AMK9’s
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allegations prove true. AMK9’s allegations have to actually be true first. This is why I cannot
condone the Court’s reasoning or its reliance on any case that holds that our proportionate-
responsibility system somehow transforms a causal finding into a political question. The causal
finding might raise a political question later in the suit, but the finding is not itself a political
question.
We cannot avoid a fact question now just because a dispositive legal one might arise later.
At no point in a factual who-did-what determination will the court or jury re-examine a military
decision. See id. Why the Army made that decision and whether the decision was justified are
irrelevant to that inquiry. The decision was made. All that matters is whether it caused Freeman’s
injuries, as AMK9 claims, or not, as Freeman claims.
This untenable distinction between causation defenses is rendered even more inexplicable
when we consider that, had AMK9 argued only that the Army was the sole proximate cause, the
Court would not dismiss this suit—that defense does not raise a nonjusticiable issue. Ante at ___
(citing Harris, 724 F.3d at 473; In re KBR, 744 F.3d at 340-41). Apparently, a defendant is better
off admitting that he partly caused an injury than that he did not cause it at all, so long as he also
asserts that the military partly caused the injury—i.e., admitting partial fault will get your case
dismissed; denying fault completely will not. That cannot be right, and is probably why the U.S.
Supreme Court has not endorsed this view.
The Court dismisses this entire suit on the mere allegation that the Army might have at least
partly caused Freeman’s injuries. Because that causal fact-question is disputed, and because nothing
about our proportionate-responsibility system mutates such a causal finding into a political question,
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we should not yet hold that a political question is “inextricable from the case.” Baker, 369 U.S. at
217. Until a political question is so intertwined, I cannot join the Court’s judgment.
B. Preemption under the Federal Tort Claims Act
AMK9 argues that the Federal Tort Claims Act preempts Freeman’s Texas tort-law claims
because the Act’s combatant-activities exception applies here. See 28 U.S.C. § 2680(j) (2012). The
Tort Claims Act is a limited waiver of sovereign immunity, 28 U.S.C. § 2674, and under the
combatant-activities exception, the United States retains its immunity for “[a]ny claim arising out
of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”
Id. But “[u]nlike complete preemption, which is a jurisdictional issue,” preemption based on the
combatant-activities exception is “only an affirmative defense.” McManaway v. KBR, Inc., 852 F.3d
444, 447 n.2 (5th Cir. 2017); see also Spear Mktg., Inc. v. BancorpSouth Bank, 844 F.3d 464, 467
n.3 (5th Cir. 2016), Cmty. State Bank v. Strong, 651 F.3d 1241, 1260 n.16 (11th Cir. 2011). “[N]o
court has held[] that” preemption under this exception “constitutes complete preemption,” and
“[a]bsent complete preemption, whether a plaintiff's claims are preempted relates to the merits.”
Harris, 724 F.3d at 463. I see no reason to disagree with the federal circuits on this matter.
The combatant-activities exception does not preempt all state-law tort claims; it preempts
only those claims “arising out of” combatant activities. 28 U.S.C. § 2680(j). Such claims are only
a small subset of potential tort claims, not the entire substantive field of tort claims or even the entire
field of tort claims against contractors overseas. See Spear Mktg., 844 F.3d at 467 n.3. Because the
combatant-activities exception does not convert all such state-law tort claims into federal
claims—i.e., despite the exception, state-law tort claims continue to exist—the exception is merely
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“ordinary” preemption, not “complete” preemption. See GlobeRanger Corp. v. Software AG, 691
F.3d 702, 705 (5th Cir. 2012) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)); 14B
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3722.2 (4th ed. 2016).
AMK9’s preemption argument is, therefore, only a defense. Even if the exception applies to
Freeman’s claims, the exception goes to the merits and, hence, cannot sustain a jurisdictional plea.
C. Westfall Immunity
AMK9 next argues that it is entitled to Westfall immunity, a form of absolute official
immunity. This argument was not one of AMK9’s original bases for its jurisdictional plea. AMK9
originally argued derivative sovereign immunity, but on appeal has abandoned that ground in favor
of Westfall immunity. Because Westfall immunity is immunity from suit, defendants can raise it for
the first time on appeal. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015).
The original test for determining whether absolute official immunity applies comes from
Westfall v. Erwin, 484 U.S. 292 (1988). That decision has been superseded by statute, see 28 U.S.C.
§ 2679(d) (2012), but the Westfall test is still used to determine when such immunity applies to
nongovernmental entities for state-law tort claims. Houston Cmty. Hosp. v. Blue Cross and Blue
Shield of Texas, Inc., 481 F.3d 265, 269 (5th Cir. 2007); accord Murray v. Northrop Grumman Info.
Tech., Inc., 444 F.3d 169, 174 (2d Cir. 2006); see also Beebe v. Washington Metro. Area Transit
Auth., 129 F.3d 1283, 1289 (D.C. Cir. 1997). Under this test, a nongovernmental entity is entitled
to immunity when it makes discretionary decisions within the scope of its duties to perform an
official government function. Houston Cmty. Hosp., 481 F.3d at 269.
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Here, AMK9 handles bomb-sniffing working dogs at a forward-operating base during war.
These dogs work with active combat-units in the field, supplementing the military’s own working
dogs. Such overseas combat-related work that is integrated with the military is quintessentially
governmental in nature. But Freeman is not alleging that AMK9 erred in any of its discretionary
acts while performing these government functions. Freeman is claiming that AMK9 failed to do
what the Army required—i.e., to close all of the kennel’s doors, to not leave any dogs unattended,
and to train the dogs so that they would attack only when ordered or given cause. AMK9 did not
have discretion to violate its contractual duties or the Army’s policies. Indeed, official immunity
is not meant “to protect an erring official, but to insulate the decision-making process” from
litigation. Westfall, 484 U.S. at 295. The Army already prescribed AMK9’s actions—the relevant
official decisions were already made. Hence, Freeman is not challenging AMK9’s discretionary
decisions; she is challenging its failure to do what the Army already decided that AMK9 must do.
Whether these alleged failures proximately caused Freeman’s injuries is a separate question that
goes to the merits. But for purposes of evaluating AMK9’s immunity argument, AMK9 has failed
to demonstrate that it is immune from suit by, as Freeman alleges, not doing what the Army
required.
AMK9 points out, however, that it had discretion in how to train its dogs. True, but Freeman
is not challenging AMK9’s discretionary decisions in picking particular training methods. She
claims that AMK9 failed to deliver working dogs that met the Army’s performance-based contract
requirements. Performance-based contracts “describe the work in terms of the required results rather
than . . . ‘how’ the work is to be accomplished . . . .” Saleh v. Titan Corp., 580 F.3d 1, 10 (D.C. Cir.
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2009) (quoting 48 C.F.R. § 37.602(b)(1)). One of those requirements was that these dogs would
attack only when commanded or when given cause. AMK9 therefore had discretion in how to train
its dogs to meet these requirements, not whether its dogs met them. For that reason, this argument
fails. Thus, Westfall immunity cannot sustain AMK9’s plea to the jurisdiction.
D. Defense Production Act
Finally, AMK9 argues that it is immune from suit because its contract with the Army is a
“rated order” contract under the Defense Production Act. The Act authorizes the President to
“require that performance under contracts or orders . . . which he deems necessary or appropriate
to promote the national defense shall take priority over performance under any other contract or
order . . . .” 50 U.S.C. § 4511(a) (Supp. IV 2016). The Act later states that “[n]o person shall be
held liable for damages or penalties for any act or failure to act resulting directly or indirectly from
compliance with a rule, regulation, or order issued pursuant to this [Act] . . . .” Id. § 4557. Hence,
the Act provides immunity to contractors who give their “rated order” contracts priority over other
contracts or orders when their actions (or inactions) in doing so might otherwise subject them to
liability.
Assuming that the Act applies here, it cannot sustain AMK9’s jurisdictional plea. Even
though the Act “plainly provides immunity,” it does so “[b]y expressly providing a defense to
liability.” Hercules Inc. v. United States, 516 U.S. 417, 429 (1996) (emphasis added). The Act,
therefore, provides immunity from liability, not suit. See Brown & Gay Eng’g, Inc. v. Olivares, 461
S.W.3d 117, 121 (Tex. 2015) (“Immunity from liability is an affirmative defense . . . while immunity
from suit bars suit against the entity altogether and may be raised in a plea to the jurisdiction.”).
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Thus, whether the Act applies to tort suits like this one or not, AMK9’s Defense Production Act-
based defense cannot sustain its jurisdictional plea.
*****
Because none of AMK9’s arguments establish a lack of subject-matter jurisdiction, the trial
court erred in granting AMK9’s plea to the jurisdiction.
II. Jurisdiction over Freeman’s claims against Hill Country Dog Center, LLC
Hill Country Dog Center did not file a plea to the jurisdiction. It did file a Rule 91(a)
motion, but the trial court did not rule on it. See TEX. R. CIV. P. 91(a). On appeal, Hill Country
argues that, under Texas law, liability for a dog attack runs only to the owner at the time of the
incident, not to the former owner. It also argues that no causes of action for negligently training a
dog or for strict liability for a non-owner exist. Hence, Hill Country argues that the trial court was
correct to find, sua sponte, that it lacked jurisdiction over Freeman’s claims.
Whether these arguments are correct statements of Texas law or not, Hill Country provides
no authority that they deprive the trial court of subject-matter jurisdiction. Its arguments, even if
meritorious, offer immunity only from liability, not suit. Thus, the trial court erred in dismissing
Freeman’s claims against Hill Country based on a lack of subject-matter jurisdiction.
III. Conclusion
Freeman alleges that AMK9’s supervision and training of its dog was the cause-in-fact of
her injuries. AMK9 alleges that the Army was partly to blame. Although the Court does not know
whether either allegation is true, it nonetheless dismisses Freeman’s claim against AMK9 because
the Army might have contributed to causing her injuries. Even assuming that the Court otherwise
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correctly applies the political-question doctrine to such partial-cause scenarios, I simply cannot
understand how the mere allegation that the Army might have partly caused Freeman’s injuries is
sufficient to defeat her claim—a claim that does not even raise that issue. The Court ignores these
deficiencies to sustain AMK9’s jurisdictional plea notwithstanding the existence of unresolved
factual questions necessary to the doctrine’s application. Thus, I respectfully dissent.
______________________________
John P. Devine
Justice
OPINION DELIVERED: June 29, 2018
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