Justin Schrader v. Texas Department of Public Safety

Opinion filed June 9, 2022

In The

Eleventh Court of Appeals
__________

No. 11-20-00145-CV
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JUSTIN SCHRADER, Appellant
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CV36061

MEMORANDUM OPINION
Appellant, Justin Schrader, sued the Texas Department of Public Safety (DPS)
for injuries sustained during his arrest. Appellant also sued Erath County and several
individuals employed by Erath County. DPS moved to dismiss for lack of
jurisdiction asserting that it was immune from suit under the Texas Tort Claims Act
(TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2019). The trial
court granted the motion and entered an order of dismissal as to the claims against
DPS. Appellant brings this interlocutory appeal from the order of dismissal. See
CIV. PRAC. & REM. § 51.014(a)(8) (West Supp. 2021) (conferring this court with
interlocutory jurisdiction over an interlocutory order that “grants or denies a
[governmental unit’s] plea to the jurisdiction”). In two issues, Appellant asserts that
the trial court erred in granting the motion to dismiss on jurisdictional grounds
because (1) he pleaded the statutory elements required for a waiver of immunity
from suit under the TTCA and (2) the TTCA’s intentional tort exclusion does not
apply to his claims because the acts that he alleged did not involve an intent to injure.
We affirm.
Background Facts
Appellant filed his original petition alleging that DPS was responsible for
injuries he sustained during his arrest. Appellant’s petition generally alleges the
following: Appellant was driving a welding truck late at night when he noticed
police lights behind him. Appellant then looked for a safe place to pull over to let
the police vehicle pass—not knowing that the DPS trooper intended to stop him.
Trooper Jerry Hale initiated the stop and requested backup, alleging that Appellant
was “racing and was evading arrest.”
Appellant exited his vehicle and Trooper Hale placed Appellant in
handcuffs—which Appellant alleged was a reckless and negligent act because there
was no probable cause and no reason to restrain him. After Appellant was
handcuffed, Trooper Hale performed a “leg sweep,” which caused Appellant to fall
to the ground and break his leg. Appellant alleged that Trooper “Hale did not intend
to injure” him with the leg sweep and that his injuries were caused by the handcuffs
because they prevented him from using his arms to break his fall. Appellant suffered
“excruciating pain” and informed the officers that his leg was broken.
Appellant sued DPS for various state tort causes of action. DPS moved to
dismiss for lack of jurisdiction asserting that it was immune from suit under the
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TTCA. See CIV. PRAC. & REM. § 101.021. The trial court granted DPS’s motion
and entered an order of dismissal. This appeal followed.
Analysis
In Appellant’s first issue, he asserts that the trial court erred by granting DPS’s
motion to dismiss because he alleged facts in his pleadings to show a waiver of
immunity under the TTCA. In his second issue, Appellant contends that the
intentional tort exclusion under the TTCA does not apply to acts that do not intend
to cause injury. DPS contends that it is immune from suit because it is a
governmental unit under the TTCA, which expressly waives sovereign immunity in
a limited set of circumstances that are not present in this case. We initially address
Appellant’s second issue with respect to the intentional tort exclusion because we
determine that it is dispositive.
“Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.
2008). Sovereign immunity encompasses both immunity from suit and immunity
from liability. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from
suit deprives courts of subject-matter jurisdiction and completely bars actions
against governmental entities unless the legislature expressly consents to suit. Reata
Constr. Corp., 197 S.W. 3d at 374; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 696 (Tex. 2003). The TTCA provides a limited waiver of immunity that allows
plaintiffs to bring suits against governmental units in only certain, narrowly defined
circumstances. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.
2001); Ector Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004,
no pet.). The State retains sovereign immunity from suit to the extent that immunity

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has not been abrogated by the legislature. See Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).
“A claim of immunity is properly raised by a plea to the jurisdiction,” Univ.
of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019),
and a motion to dismiss is the functional equivalent of a plea to the jurisdiction
because both defeat a cause of action without reaching the merits. Id.; Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Briggs v. Toyota Mfg. of Tex.,
337 S.W.3d 275, 281 n.5 (Tex. App.—San Antonio 2010, no pet.). Whether a trial
court has subject-matter jurisdiction over a case is a question of law that we review
de novo. McKenzie, 578 S.W.3d at 512; Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).
A plea to the jurisdiction can take two forms: (1) a challenge to the pleadings
and allegations of jurisdictional facts or (2) an evidentiary challenge to the existence
of jurisdictional facts. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
635 (Tex. 2012); Miranda, 133 S.W.3d at 226–27. In its motion to dismiss, DPS
challenged the pleadings. A plaintiff suing the governmental unit has the burden of
alleging facts that affirmatively demonstrate the trial court’s subject-matter
jurisdiction. Miranda, 133 S.W.3d at 226. In our review, we construe Appellant’s
pleadings liberally, take all factual allegations as true, and look to his intent. See
McKenzie, 578 S.W.3d at 512; Tex. Mun. League Intergovernmental Risk Pool v.
City of Abilene, 551 S.W.3d 337, 342–43 (Tex. App.—Eastland 2018, pet. dism’d).
Under the TTCA’s immunity-waiver provision, a governmental unit can be
held liable for certain injuries proximately caused by the “wrongful act or omission
or the negligence of an employee acting within his scope of employment if” the
injury is 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.” CIV. PRAC. & REM. § 101.021. The Texas Supreme Court has
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instructed that we interpret “use” according to its ordinary meaning—to put or bring
the property into action or service. See Tex. Dep’t of Criminal Justice v. Rangel,
595 S.W.3d 198, 206 (Tex. 2020); McKenzie, 578 S.W.3d at 513. For the injury to
fall within the TTCA’s waiver, the “government’s use of the property ‘must have
actually caused the injury.’” Rangel, 595 S.W.3d at 206 (quoting Sampson v. Univ.
of Tex. at Austin, 500 S.W.3d 380, 388–89 (Tex. 2016)). The use of property does
not actually cause the plaintiff’s injury “if it does no more than furnish the condition
that makes the injury possible.” Dallas Cty. Mental Health & Mental Retardation v.
Bossley, 968 S.W.2d 339, 343 (Tex. 1998).
Additionally, the TTCA’s limited waiver does not apply to intentional torts
such as assault or battery. CIV. PRAC. & REM. § 101.057(2); see also City of
Watauga v. Gordon, 434 S.W.3d 586, 589–90 (Tex. 2014) (discussing the melding
of the common-law assault and battery under the rubric of assault in the current
version of the Penal Code). Thus, to sue a governmental unit under the TTCA, a
plaintiff must allege a negligent or wrongful act, caused by the use of tangible
personal or real property, that does not arise out of an intentional tort. Gordon, 434
S.W.3d at 589. When analyzing a claim under the TTCA, we look to the gravamen
of the complaint—a plaintiff may not use artful pleading to expand the TTCA’s
limited waiver. McKenzie, 578 S.W.3d at 513. Thus, we must first determine
whether Appellant’s underlying claim is one of negligence or intentional tort.
Appellant asserts in his second issue that his complaint is “neither an
intentional tort nor a battery.” Instead, Appellant asserts that he is complaining of
the negligent application of the handcuffs, which, after Trooper Hale performed a
leg sweep, prevented him from breaking his fall, which then caused his injuries. As
noted above, we look to the substance of the pleadings, not the characterization or
form, to determine whether the legislature has waived sovereign immunity.
Appellant alleged in his pleadings that Trooper Hale “restrained [Appellant] with
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handcuffs . . . then proceeded to do a ‘leg sweep’ on [Appellant], which, because of
the recklessness in first applying handcuffs, prevented [Appellant] from breaking his
fall and resulted in a severely broken leg.” Appellant further alleged that Trooper
Hale’s “use of the handcuff restraints was reckless conduct” or, in the alternative,
negligent conduct because Trooper Hale had no reason to restrain Appellant.
Appellant contends that the primary distinction between an intentional tort
and an injury caused by negligence is the specific intent to injure. Thus, under
Appellant’s theory, because Trooper Hale did not intend to injure Appellant, the
injury was the result of negligence. Appellant cites Durbin v. City of Winnsboro for
this proposition. 135 S.W.3d 317 (Tex. App.—Texarkana 2004, pet. denied).
Durbin involved a wrongful death suit brought by the parents of the deceased after
their son died in a motorcycle accident while being pursued by a city police officer.
Id. at 318. The parents alleged that the officer was “negligent, careless, and reckless”
when he “bumped” their son’s motorcycle with his patrol car, causing a wreck and
killing their son. Id. at 318, 320. The City of Winnsboro claimed immunity under
the TTCA, and the trial court granted its plea to the jurisdiction. Id. at 318. The
court of appeals reversed in part and adopted the reasoning of the Texas Supreme
Court in Reed Tool to determine what constitutes an intentional tort under the TTCA.
The court of appeals held that “the fundamental difference between a negligence
cause of action and an intentional tort is not whether the defendant intended his or
her acts, but whether the defendant intended the resulting injury.” Durbin, 135
S.W.3d at 324 (citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)).
However, the Texas Supreme Court has since rejected the application of Reed
Tool in the context of the TTCA. In City of Watauga v. Gordon, much like the case
before us, the plaintiff sued the city for injuries sustained during his arrest. 434
S.W.3d at 592. Specifically, the plaintiff alleged that his wrists were injured by an
officer’s negligent application of handcuffs. Id. The plaintiff asserted that his
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underlying claim was for negligence and not battery because “the officers did not
intend to injure him and he did not resist arrest.” Id. at 590–91. The Texas Supreme
Court rejected this argument and distinguished Reed Tool, a worker’s compensation
case about intentional and accidental injuries, from an immunity claim under the
TTCA. Id. at 592 (“We agree with the City here that the distinction drawn in Reed
Tool between intentional and accidental injuries is not particularly helpful in
distinguishing a battery from negligence.”). Instead, the court found that a “specific
intent to injure is not an essential element of a battery.” Id. Thus, the court held that
the gravamen of the plaintiff’s complaint was excessive force—a battery. Id. at 593.
We find that this case is analogous to Gordon. In Gordon, the plaintiff alleged
that he suffered injuries during his arrest. The Texas Supreme Court was required
to determine whether the plaintiff alleged a cause of action for negligence or
battery—an intentional tort. Id. at 589–94. The court analyzed the history of the
tort of battery, including the Penal Code’s provision for assault and battery. Id. at
589–90 (citing TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2021)). The court
additionally noted that the Second Restatement of Torts recognizes that one form of
battery involves offensive bodily contact. Id. at 590 (citing RESTATEMENT (SECOND)
OF TORTS §§ 13, 18 (1965)); see Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d
627 (Tex. 1967) (discussed in Gordon).
The court noted that a specific intent to injure is not an essential element of a
battery and that an intentional physical injury is not required for a battery to occur.
Gordon, 434 S.W.3d at 592 & n.6 (citing W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, PROSSER AND KEETON ON TORTS 36–37 (5th ed. 1984), for the following
proposition: “The defendant may be liable although . . . honestly believing that the
act would not injure the plaintiff.”). It is enough if the defendant intends “bodily
contact that is ‘offensive.’” Id. at 593 (quoting 1 Dan B. Dobbs, Paul T. Hayden &
Ellen M. Bublick, THE LAW OF TORTS §§ 33 at 81 (2d ed. 2012)). Thus, “[l]iability
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in battery . . . extends to harmful bodily contacts even though only offensive contacts
were intended.” Id.
The court in Gordon concluded that the gravamen of the plaintiff’s compliant
was that the police officers used excessive force in effecting his arrest. Id. at 593.
The court held that “when an arrest, lawful in its inception, escalates into excessive-
force allegations, the claim is for battery alone.” Id. “The actions of a police officer
in making an arrest necessarily involve a battery, although the conduct may not be
actionable because of privilege.” Id. at 594 (citing Love v. City of Clinton, 524
N.E.2d 166, 167 n.3 (Ohio 1988)). “[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.” Id. (quoting City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.
App.—San Antonio 1990, writ denied)).
As was the case in Gordon, here the gravamen of Appellant’s complaint is a
claim of excessive force by Trooper Hale in effecting Appellant’s arrest. Although
Appellant’s pleadings alleged that Trooper Hale did not intend to injure him, his
pleadings indicate that Trooper Hale did intend to cause physical contact through the
application of excessive force. When an arrest “escalates into excessive-force
allegations, the claim is for battery alone.” Id. at 593.
The TTCA “waives governmental immunity for certain negligent conduct, but
it does not waive immunity for claims arising out of intentional torts, such as
battery.” Id. at 594 (citing CIV. PRAC. & REM. § 101.057(2)). Because the gravamen
of Appellant’s complaint is that Trooper Hale used excessive force during his arrest,
he does not state a claim for negligence as required by the TTCA. See id. at 593–
94. We overrule Appellant’s second issue on appeal.
Because the intentional tort exception of the TTCA applies, we hold that
Appellant has failed to state a claim for which DPS’s sovereign immunity is waived.
Thus, the trial court did not err in granting DPS’s motion to dismiss on jurisdictional
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grounds. Accordingly, we do not reach Appellant’s first issue because our resolution
of his second issue is dispositive of this appeal. See TEX. R. APP. P. 47.1.
This Court’s Ruling
We affirm the trial court’s order dismissing Appellant’s claims against DPS.

JOHN M. BAILEY
CHIEF JUSTICE

June 9, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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