Harris County, Texas v. Lori Annab,
No. 17-0329 (Tex. May 11, 2018) (County held immune from suit by citizen shot by off-duty officer using County-approved but privately-owned duty weapon).
Authoring Justice Blacklock allows that the record of the shooter (who was later convicted and is now in jail) may not have made him the ideal candidate to be a peace officer, considering that he had been fired from 12 of 21 prior jobs, that he was dismissed from the police academy for bad behavior, and that he required mood stabilizing medications.
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| Old and Modern Harris County Courthouse |
Once you (are forced by the Texas Supreme Court to) accept the premise that the government is entitled to win in civil disputes with citizens because the government is the government -- a modern version of "The King Can Do No Wrong" -- and that it is the job of the courts to apply that principle and shut the courthouse door to victims of the government's agents it's easier to understand it all.
SUPREME COURT OPINION
BY JUSTICE BLACKLOCK
IN THE SUPREME COURT OF TEXAS
══════════
No. 17-0329
══════════
HARRIS COUNTY, TEXAS, PETITIONER,
v.
LORI ANNAB, RESPONDENT
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
══════════════════════════════════════════
Argued March 1, 2018
JUSTICE BLACKLOCK delivered the opinion of the Court.
On November 14, 2011, Kenneth Caplan shot Lori Annab in a fit of road rage. Caplan was
a Harris County deputy constable, but he was off duty when he committed this vicious crime. He
fired his personal firearm from his personal vehicle, striking and injuring Annab. Caplan is now
in prison serving a twenty-year sentence. These facts are undisputed.
Although Caplan was off duty and used his personal firearm in the assault, Annab sued
Harris County, Caplan’s employer. Invoking the Texas Tort Claims Act, Annab attempted to
overcome Harris County’s governmental immunity by claiming that Harris County used tangible
personal property when Caplan shot Annab. The trial court granted the county’s plea to the
jurisdiction and dismissed the case. The court of appeals concluded that Annab had not established
a waiver of governmental immunity but remanded the case to allow Annab to replead and conduct
2
more discovery. We agree with the court of appeals that Annab has not established a waiver of
governmental immunity because her allegations, taken as true, do not demonstrate that Harris
County’s use of tangible personal property caused her injuries. We disagree, however, with the
court of appeals’ decision to remand the case. Despite multiple opportunities to do so, Annab has
identified no viable factual or legal theory under which she could overcome the county’s immunity
on remand, and we can conceive of none. Remand was therefore improper. We affirm the
judgment of the court of appeals in part, reverse in part, and render judgment for Harris County.
I. Background
Annab sued Harris County in October 2015. Attempting to trigger the Tort Claims Act’s
limited waiver of governmental immunity, she alleged that Harris County’s use of tangible
personal property caused the injuries she suffered when Caplan shot her. The alleged use of
tangible personal property was the county’s decision to hire Caplan and “repeatedly
approv[e]/authoriz[e] and qualify[] [Caplan] to have, possess, and use the Glock gun as a firearm.”
The county responded with a plea to the jurisdiction. The county made three arguments: (1)
Annab’s claims were excluded from the Tort Claims Act’s immunity waiver because they arose
from Caplan’s intentional assault, (2) the use or misuse of information was not the “use of tangible
personal property” under the Tort Claims Act, and (3) Caplan did not act within the scope of his
employment, so “[n]o county property was used.” The trial court permitted additional discovery
into these issues prior to ruling on the plea to the jurisdiction. Annab deposed the county’s
representative, Deputy Chief Armando Tello, before the court granted the county’s plea and
dismissed the case.
3
Annab filed an interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The
court of appeals found that Annab’s allegations regarding the county’s “use” of the firearm failed
to establish a waiver of the county’s immunity. Annab v. Harris Cty., 524 S.W.3d 793, 803–05
(Tex. App.—Houston [14th Dist.] 2017, pet. granted). Further, the court of appeals found that any
alleged use was not a proximate cause of Annab’s injuries. Id. But the court of appeals remanded
the case to the trial court to allow Annab to replead and conduct more discovery. Id. One justice
dissented. The dissent argued that Annab’s claims arose from an intentional tort and were therefore
excluded from the Tort Claims Act, regardless of whether she sufficiently alleged the county’s use
of tangible personal property. Id. at 805–08 (Donovan, J., dissenting).
II. Analysis
Sovereign immunity and governmental immunity are related common law doctrines
protecting the government from suit. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–
58 (Tex. 2011). “Sovereign immunity protects the state and its various divisions, such as agencies
and boards, from suit and liability, whereas governmental immunity provides similar protection to
the political subdivisions of the state, such as counties, cities, and school districts.” Id.; see also
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). An assertion of
governmental immunity “implicates courts’ subject-matter jurisdiction.” Rusk State Hosp. v.
Black, 392 S.W.3d 88, 91 (Tex. 2012). Thus immunity “is properly asserted in a plea to the
jurisdiction.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
Subject matter jurisdiction is a question of law that we review de novo. Id. at 226. When
considering whether the pleadings allege jurisdiction, we “require[] the pleader to allege facts that
affirmatively demonstrate the court’s jurisdiction.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
4
S.W.2d 440, 446 (Tex. 1993). “When reviewing a trial court order dismissing a cause for want of
jurisdiction, Texas appellate courts ‘construe the pleadings in favor of the plaintiff and look to the
pleader’s intent.’” Id. (quoting Huston v. FDIC, 663 S.W.2d 126, 129 (Tex. App.—Eastland 1983,
writ ref’d n.r.e.)).
A governmental unit such as Harris County may be sued if the Legislature has waived
immunity in “clear and unambiguous language.” TEX. GOV’T CODE § 311.034; Oncor Elec.
Delivery Co. v. Dall. Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012) (“[A] waiver of
governmental immunity must be clear and unambiguous.”). The Tort Claims Act waives immunity
for certain tort claims against governmental units, including claims for “personal injury . . . caused
by a condition or use of tangible personal . . . property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE
§ 101.021(2); see also id. § 101.025(a) (“Sovereign immunity to suit is waived and abolished to
the extent of liability created by this chapter.”). Annab does not contend that her injuries were
caused by a “condition” of tangible personal property. Thus, to invoke section 101.021(2)’s waiver
of immunity, Annab must allege that the county’s “use of tangible personal property” caused her
injuries. See Texas Ass’n of Bus., 852 S.W.2d at 446 (emphasis added).
“[S]ince 1973 we have consistently defined ‘use’ to mean ‘to put or bring into action or
service; to employ for or apply to a given purpose.’ A governmental unit does not ‘use’ personal
property merely by allowing someone else to use it and nothing more. If all ‘use’ meant were ‘to
make available,’ the statutory restriction would have very little force.” San Antonio State Hosp.
v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004); see also Rusk, 392 S.W.3d at 98 (holding that “use”
does not include “providing, furnishing, or allowing access to tangible property”).
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Annab alleges that the county used Caplan’s firearm by authorizing Caplan to use or
possess the firearm. This allegation fails as a matter of law to trigger the Tort Claims Act’s
immunity waiver. Annab’s primary allegation of “use” stems from the county’s alleged
“authorization” or “approval” of Caplan’s use of his firearm. Stated another way, Annab alleges
the county “made available” the firearm to Caplan, which he then used to cause her injuries. The
allegation that the county made the firearm available to Caplan is at odds with the undisputed facts,
as explained below. But even accepting the allegation at face value, Annab has not alleged “use”
of the firearm by the county under the Tort Claims Act. We consistently have defined “use” to be
more than making tangible personal property available for use by another. To use something, the
governmental unit must “put [it] or bring [it] into action or service [or] employ [it] for or apply [it]
to a given purpose.” Cowan, 128 S.W.3d at 246. For the government to “use” tangible personal
property, “the governmental unit [must] itself [be] the user,” id., and “the injury must be
contemporaneous with the use of the tangible personal property.” Sampson v. Univ. of Tex. at
Austin, 500 S.W.3d 380, 389 (Tex. 2016). Annab’s allegation that the county enabled, authorized,
or approved Caplan’s use of the firearm does not amount to an allegation that the county used the
firearm. This allegation therefore does not trigger the Tort Claims Act’s waiver of immunity.
Annab also attempts to overcome Harris County’s immunity by alleging that the county’s
various administrative decisions regarding Caplan’s employment amount to the “use of tangible
personal property.” Annab points to Caplan’s troubled employment history before and during his
time as a constable. She alleges that Caplan’s bad acts prior to and during his employment
demonstrate that the county should not have hired Caplan, should have fired Caplan, or should
have withdrawn its authorization for him to possess his firearm while on duty. Although these
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allegations have little to do with the county’s liability under the Tort Claims Act, they demonstrate
that Caplan’s record may not have made him the ideal candidate to be a peace officer. Caplan
disclosed on his application that he had been fired from 12 of 21 prior jobs, that he was dismissed
from the police academy for bad behavior, and that he required mood stabilizing medications.
According to Annab, the county failed to investigate these events prior to hiring Caplan as a deputy
constable and authorizing him to use his firearm while on duty. During his employment with the
county, Caplan had two reported incidents of road rage. Annab complains that despite these acts,
Caplan was neither terminated from employment nor prohibited from carrying his firearm during
his duties.
In a different case, these allegations could have some relevance to a claim against a private
employer. But Harris County is not a private employer. It is immune from suits such as Annab’s
unless the Legislature waives its immunity. The Legislature has chosen to waive the county’s
governmental immunity only in limited circumstances. Kerrville State Hosp. v. Clark, 923 S.W.2d
582, 585 (Tex. 1996) (noting that the Tort Claims Act did not “abolish[] governmental immunity”
but was a “limited waiver [by] the Legislature”). The only waiver of immunity Annab alleges is
the Tort Claims Act’s waiver for the county’s “use of tangible personal property.” Under our
precedent and the plain text of the Tort Claims Act, the county’s failure to take action based on
information it knew or should have known about its employee is not the “use of tangible personal
property.” “We have long held that information is not tangible personal property, since it is an
abstract concept that lacks corporeal, physical, or palpable qualities.” Tex. Dep’t of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001); see also Univ. of Tex. Med. Branch at Galveston v. York,
871 S.W.2d 175, 178 (Tex. 1994) (“[T]angible personal property refers to something that has a
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corporeal, concrete, and palpable existence.”). We have also held that complaints about
employment decisions allege the use or non-use of information, not the use of tangible personal
property. See Tex. Dep’t of Criminal Justice v. Campos, 384 S.W.3d 810, 815 (Tex. 2012) (holding
that a state agency’s failure to properly screen, hire, train, supervise, and discipline employees who
later committed assault while employed by the state agency was misuse of information, not of
tangible personal property). We reject Annab’s claim that the county’s use or non-use of
information regarding Caplan’s fitness to serve as a constable or to possess his personal firearm
establishes a waiver of immunity under the Tort Claims Act.
Further, non-use is by definition not use. “It is well settled that mere nonuse of property
does not suffice to invoke section 101.021(2)’s waiver. If it did, governmental immunity ‘would
be rendered a nullity,’ because ‘[i]t is difficult to imagine a tort case which does not involve the
use, or nonuse, of some item of real or personal property.’” City of N. Richland Hills v. Friend,
370 S.W.3d 369, 372 (Tex. 2012) (quoting Kerrville State Hosp., 923 S.W.2d at 586). The
county’s failure to use information when it hired Caplan, retained Caplan as an employee, and
declined to revoke the authorization for his on-duty possession of a firearm, cannot be the “use of
tangible personal property.”
In addition to their legal insufficiency, Annab’s claims proceed from an untenable factual
premise. Even if the county making the firearm available to Caplan were enough to waive the
county’s immunity—and it is not—the record demonstrates that the county did not make the
firearm available to Caplan. Annab admits that Harris County does not issue firearms to deputy
constables. Annab also admitted before the court of appeals that Caplan owned the firearm prior
to his employment with the county. Annab, 524 S.W.3d at 801–02. There is no dispute that Caplan
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procured the firearm independently of the county. He possessed it and had the ability to use it
criminally against Annab irrespective of his employment. Even accepting Annab’s allegations as
true, there is no factual basis for the notion that the county made the firearm available to Caplan.
Annab argues repeatedly that, but for the county’s approval and authorization, Caplan
would not have been able to carry and use his personal firearm. As explained above, approval and
authorization does not constitute “use of tangible personal property” under our precedent, which
requires the county be the user of the tangible personal property at the time of the injury. But in
any event, Annab has not articulated how Caplan’s right to possess his personal firearm on his
personal time was dependent on the county’s approval. See U.S. CONST. amend II; TEX. CONST.,
art. I, § 23. The county’s policy on deputy constables’ use of personal firearms actually functions
in the opposite fashion; it assumes the deputy constable has the right to carry his personal firearm
while off duty but attempts to impose controls on what kind of firearm deputy constables may
carry. The policy also prohibits the carrying of a firearm to “locations where the primary business
activity is the service of alcoholic beverages” and generally urges constables to exercise discretion
when deciding where they carry their off duty firearm. The county’s maintenance of this generic
off duty firearms policy for all its deputy constables does not amount to approval or authorization
of everything an individual deputy constable does with his personal firearm while off duty.
Despite this, Annab claims that Deputy Chief Tello admitted at his deposition that without
the county’s authorization Caplan could not have kept his firearm. But this testimony was cabined
to Caplan’s possession of the firearm during his duties as a constable. Certainly the county could
have prevented Caplan from possessing or using the firearm while on duty. But the shooting
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occurred when Caplan was off duty. Tello testified at his deposition that the county’s policies do
not affect Caplan’s right to carry a firearm while off duty:
Q. In reference to the authorization to use firearms, what is the purpose of
authorizing a firearm?
A. First of all, we want to ensure that the deputy can show proficiency with the
weapon, the approved weapon, for conducting his job.
Q. Is the authorization a license to carry that firearm?
A. No, sir.
Q. Does it have any effect on Mr. Caplan’s or any other deputy’s legal right to
carry a firearm?
A. No, sir.
In sum, Annab’s allegations that the county made the firearm available to Caplan and authorized
or approved his possession and use of it are both legally insufficient and factually unsupportable.
These allegations do not establish a waiver of immunity under the Tort Claims Act.
* * *
We turn next to whether the court of appeals correctly remanded the case to afford Annab
the opportunity to replead and conduct further discovery. As explained below, we conclude that
remand was improper, and we render judgment for the county.
When a defendant raises a jurisdictional argument for the first time on appeal, remand may
be appropriate to afford the plaintiff a “fair opportunity to address” the jurisdictional argument.
Rusk, 392 S.W.3d at 96; see also RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex. 2016)
(citing Rusk in ordering remand where standing was raised for the first time on appeal). However,
if the party who raised the jurisdictional defense can show that “the pleadings or record . . .
conclusively negate the existence of jurisdiction,” or that the plaintiff did in fact have a “full and
fair opportunity in the trial court to develop the record and amend the pleadings,” or that even with
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a remand “the plaintiff would be unable to show the existence of jurisdiction,” then the case should
be dismissed without a remand. Id. at 96–97.
The court of appeals remanded the case because it determined that the county raised
arguments regarding the proper understanding of “use” under the Tort Claims Act for the first time
on appeal. Annab, 524 S.W.3d at 805. To begin with, the record does not indicate that the county
waited until the appeal to raise this issue. To the contrary, the county’s plea to the jurisdiction
twice argued that the county did not use tangible personal property. The county argued that
“claims arising from the misuse or failure to use information do not waive a governmental entity’s
sovereign immunity,” and that “[n]o county property was used during the commission of
Defendant Caplan’s crime.” But even assuming these arguments were not raised until appeal, new
arguments alone do not entitle the plaintiff to replead and conduct further discovery. Under Rusk,
a remand should be denied if “the plaintiff would be unable to show the existence of jurisdiction”
on remand. Rusk, 392 S.W.3d at 96. That is the case here. Despite multiple opportunities in
briefing and at oral argument to articulate a legal or factual theory under which Harris County’s
use of tangible personal property caused Annab’s injuries, Annab’s counsel could not do so. This
is not surprising. Caplan shot Annab with his personal firearm while off duty. Annab does not
dispute this. Even accepting Annab’s allegations as true, the county did not provide the firearm to
Caplan and had no involvement in his use of it against Annab. We can envision no other facts—
and Annab’s counsel has offered none—that when combined with these undisputed facts would
establish that Harris County’s “use of tangible personal property” caused Annab’s injuries.
Because no amount of future discovery or rephrasing of the allegations could properly invoke the
Tort Claims Act’s limited waiver of the county’s immunity, remand serves no purpose.
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Finally, we note that remand may also be appropriate when the plaintiff did not have a “full
and fair opportunity in the trial court to develop the record.” Id. Here, the trial court allowed
discovery into the relevant issues, including allowing Annab to take the deposition of a
representative for the county. In that deposition, Annab and the county both asked questions
regarding the county’s alleged “use of tangible personal property.” This provided sufficient
development of the record. No amount of discovery or repleading could result in Annab
establishing Harris County’s liability for Caplan’s off duty criminal act. Remand was therefore
inappropriate.
III. Conclusion
Annab’s allegations fail to trigger the Tort Claims Act’s waiver of Harris County’s
governmental immunity. Neither further discovery nor repleading could cure this defect. We
affirm the judgment of the court of appeals in part, reverse in part, and render judgment for Harris
County.1
____________________________________
James D. Blacklock
Justice
OPINION DELIVERED: May 11, 2018
1
The county also argued that the Tort Claims Act’s waiver of immunity does not apply to claims arising from Caplan’s intentional assault, TEX. CIV. PRAC. & REM. CODE § 101.057(2) (exempting claims “arising out of assault . . . or any other intentional tort” from liability), and that the alleged use of tangible personal property by the county was not a proximate case of Annab’s injuries. Our holding that Annab cannot successfully allege that the county used tangible personal property fully disposes of the case. We need not decide whether Annab’s allegations also suffer from other
defects.
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| Harris County Administration Building in Houston |
COURT OF APPEALS OPINION
WITH DISSENT ON AN ISSUE NOT REACHED BY THE SUPREME COURT
524 S.W.3d 793 (2017)
Lori ANNAB, Appellant
v.
HARRIS COUNTY, Texas, Appellee.
NO. 14-16-00348-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Opinions filed March 14, 2017.
On Appeal from the 165th District Court, Harris County, Texas, Trial Court Cause No. 2015-58707.
Affirmed in Part, Reversed and Remanded in Part.
Steve E. Couch, Houston, TX, for appellant.
Michael Wayne Blaise, Kenneth R. Caplan, Barry Herrscher, Bruce Powers, Houston, TX, for appellee.
Panel consists of Justices Busby, Donovan, and Brown (Brown, J., majority).
Marc W. Brown, Justice.
In this interlocutory appeal, Lori Annab contends the trial court erred in granting Harris County's plea to the jurisdiction. Annab raises three issues on appeal: (1) the trial court erred if the grant of Harris County's plea was based on the Texas Tort Claims Act (TTCA) intentional torts exclusion;
798*798 (2) the trial court erred in granting the plea because the evidence raised a fact issue as to Harris County's use or misuse of property; and (3) the trial court erred in granting the plea because Harris County failed to conclusively prove the trial court lacked jurisdiction. We affirm in part and reverse and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2014, Kenneth Caplan, using his Glock firearm, shot and injured Annab. At the time of the incident, Caplan was a Deputy Constable for Harris County. In applying for employment with Harris County, Caplan disclosed that he was on medication for mood stabilization due to a chemical imbalance. In the five years prior to his employment with Harris County, Caplan held 21 jobs and was fired from 12. Caplan was dismissed from the College of the Mainland Law Enforcement Academy within four months of entering. The separation form indicated Caplan's dismissal was the result of: (1) failing minimum standards for safety in performing traffic stops and building entries for Patrol Procedures—liability concerns; (2) violation of rules by jumping chain of command on three occasions; (3) inability to function as a team member and increasing hostility towards classmates; and (4) ethics—lying.
After Caplan was hired, he identified and disclosed his Glock firearm as his primary weapon. Harris County approved and authorized the use and possession of the firearm at all times during Caplan's employment. Harris County had the authority to withdraw its approval and authorization of the firearm.
Before the November 11 incident, Caplan was involved in four other incidents. Caplan exhibited anger management issues working as a security guard on August 7, 2012. He yelled, screamed, and cursed at supervisors and threatened a supervisor or co-worker that if stopped for a traffic violation he would go to jail, not simply receive a ticket. Caplan was involved in a road rage incident on November 11, 2013. During the incident, Caplan sped up to make sure the driver could see him motioning as though he was shooting at her. He repeatedly yelled at her, loud enough for her and her children to hear, that he intended to shoot them. The driver believed Caplan was armed as he was in uniform. Caplan again exhibited road rage behavior by stopping his personal vehicle in the middle of the street to stop a driver on July 4, 2014. Caplan exited his vehicle and approached the driver who was a uniformed Houston Police Department officer. He voiced expletives at the officer prior to returning to his car. Caplan exhibited hostility towards two other officers by striking their vehicle twice on July 24, 2014.
Annab filed suit against Harris County, Caplan, and Carole Busick, Ph.D. Annab's claims against Harris County arise under the TTCA. Specifically, in her third amended original petition, Annab alleged: (1) use and misuse of property by hiring Caplan insofar as Harris County used and devoted funds and property toward him; (2) use and misuse of property by repeatedly approving, authorizing, and qualifying Caplan to have, possess, and use the firearm; and (3) use and misuse of property by negligently failing to withdraw and revoke approval and authorization for Caplan to possess and use the firearm before the November 11 incident. Annab contends the negligent acts were the proximate cause of the incident in question and the severe injuries and losses she sustained.
Harris County filed a plea to the jurisdiction. Annab filed a response arguing the trial court had jurisdiction and requesting the plea be denied. Evidence was submitted with Harris County's and Annab's motions.
799*799 Following a hearing, the trial court granted Harris County's plea to the jurisdiction.
[1] This interlocutory appeal followed.
II. ANALYSIS
A. Sovereign Immunity
Sovereign immunity includes immunity from suit and immunity from liability.
Id. "Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction."
Id. The two immunities are co-extensive under the TTCA.
Id. Absent express waiver under the TTCA, Harris County will be immune from suit.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (West Supp. 2016) (defining governmental unit to include a political subdivision of the state);
Miranda, 133 S.W.3d at 224-25.
B. Standard of Review
A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction. Id. at 226. "When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id. We must accept as true all factual allegations in the petition, construe the pleadings liberally, and look to the pleader's intent. Id. at 226-27. A plea to the jurisdiction may be granted without allowing amendment if the pleading affirmatively negates the existence of jurisdiction. Id. at 227. If the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiff should be afforded the opportunity to amend. Id.
Where the governmental unit challenges the existence of jurisdictional facts, and the parties submit evidence relevant to the jurisdictional challenge, we consider that evidence when necessary to resolve the jurisdictional issues raised. Id. We credit as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the non-movant's favor. Id. at 228. The standard of review for a jurisdictional plea or motion based on evidence "mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. The movant must present conclusive proof that the trial court lacks subject matter jurisdiction. Id. If the movant discharges its burden to establish that the trial court lacks jurisdiction, the nonmovant must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.
C. Harris County's Plea to the Jurisdiction
Annab challenges the trial court's grant of Harris County's plea in three issues. We
800*800 begin by addressing Annab's third issue as our resolution of that broad issue resolves all issues raised on appeal. In her third issue, Annab contends the trial court erred because Harris County failed to conclusively establish the trial court lacked jurisdiction. Harris County challenged the trial court's jurisdiction based on Annab's pleadings and the existence of jurisdictional facts.
Annab relies on Section 101.021(2) of the TTCA in contending Harris County's sovereign immunity is waived. Section 101.021(2) provides a waiver of sovereign immunity for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). In the trial court, Harris County argued: (1) Annab alleged an intentional tort which was excluded under the TTCA; (2) the TTCA does not recognize a claim for negligent entrustment, hiring, or supervision; and (3) sovereign immunity was not waived because Caplan was not within the scope of his employment at the time he committed the tort. On appeal, Harris County also contends the trial court lacked jurisdiction as Annab did not allege a "use" of the tangible personal property under Section 101.021(2).
See id. Harris County had the burden to conclusively prove the trial court's lack of jurisdiction by challenging Annab's pleadings or the existence of jurisdictional facts.
See Miranda, 133 S.W.3d at 228. Only then would the burden shift to Annab to present evidence sufficient to raise a material issue of fact.
Id.
1. Intentional Torts Exclusion
The limited waiver of immunity under the TTCA does not apply to intentional acts.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2011);
City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). "[T]o sue a governmental unit under the Act's limited waiver, a plaintiff may allege an injury caused by negligently using tangible property, but to be viable, the claim cannot arise out of an intentional tort."
Watauga, 434 S.W.3d at 589. "[I]ntentional conduct intervening between a negligent act and the result does not always vitiate liability for the negligence."
Delaney v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex. 1992). When the focus of the claim is on the governmental entity's negligent conduct, not the intentional conduct of its employee, the claim will not be treated as arising from an intentional tort.
See id. at 59-60;
Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990).
Unlike our dissenting colleague, Harris County does not argue that the intentional torts exclusion applies to its alleged conduct in authorizing the firearm's use and failing to withdraw that authorization. Instead, in its brief, Harris County uses quotes from Annab's petition to frame "the issue in this case [as] whether `approving/authorizing and qualifying' the use of a specific weapon or `failing to withdraw and revoke such approval/authorization' or `hiring and using/devoting funds' to pay an employee constitutes a `use' of tangible personal property . . ."—an issue we address below. Only in a footnote does Harris County address the intentional torts exclusion, and then only to explain why the alleged acts just quoted—and not the act of discharging the firearm—should be the focus of our analysis. As Harris County observes, "[t]he act of firing the weapon could not be the basis of a claim against Harris County in this case, because that act was an intentional tort specifically excluded from the coverage of the Tort Claims Act."
We agree with Harris County that the act of firing the weapon is not the basis of Annab's claim. Annab points out
801*801 that her claim as pleaded arises out of Harris County's independent negligent use and misuse of the firearm, not Caplan's discharging of the firearm — which was an intentional tort. An intervening criminal act will not automatically vitiate the negligence cause of action when the negligent actor should have realized the likelihood that such a situation might be created and that a third person might avail himself of the opportunity to commit such a crime.
See Tex. Youth Comm'n v. Ryan, 889 S.W.2d 340, 343 (Tex. App.-Houston [14th Dist.] 1994, no writ). Annab alleges Harris County negligently used and misused the firearm by authorizing, approving, and failing to withdraw its approval and authorization for Caplan to possess and use the firearm. She argues that without this approval and authorization, Caplan was not entitled to use or possess the firearm. Further, she contends that taking her factual allegations as true, it was reasonably foreseeable an incident like the one at issue in this case would occur if Harris County continued to authorize Caplan's possession and use of the firearm.
The authorization and failure to withdraw authorization for Caplan to possess and use the firearm, as alleged by Annab, are distinct actions from Caplan's use of the firearm, the intentional tort.
Cf. Young, 787 S.W.2d at 51 ("claims arise out of the alleged negligence of the city employees supervising the officer, not out of the officer's intentional tort"). Construing the pleadings liberally and accepting all facts as true, Annab's claim is not one that arises out of an intentional tort because the focus of her claim arises out of Harris County's alleged negligence in authorizing and failing to withdraw authorization to possess and use the firearm, with which Annab argues Caplan was able to commit the offending acts.
We conclude Annab has alleged facts by which her claim is not excluded from the waiver of sovereign immunity under the TTCA based on the intentional torts exclusion. Accordingly, Harris County did not meet its burden of proving that the TTCA's intentional torts exclusion applies.
[2]
The trial court's order does not expressly state the plea was granted based on the intentional torts exclusion. Harris County raised additional arguments in support of its plea in the trial court. Accordingly, our resolution of this issue does not end our analysis.
2. Negligent Entrustment, Hiring, and Supervision
Before the trial court, Harris County argued that Annab's negligent entrustment, hiring, or supervision claims did not waive sovereign immunity under the TTCA.
[3]Regarding any potential negligent entrustment claim, Annab's counsel conceded at oral argument that the firearm was Caplan's. An element of a negligent entrustment claim is entrustment of the chattel by the owner.
See 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016);
Prather v. Brandt, 981 S.W.2d 801, 806 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)(firearm). The entrustment element requires a showing that the defendant either owned or had the right to control the chattel when the injury occurred.
See De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex. App.-Houston [1st Dist.] 2001, no pet.). The right to control
802*802 requires the entrustor have a superior possessory right to the chattel than the person to whom it was entrusted.
Id. If the firearm was Caplan's, Harris County could not have issued it to him as alleged by Annab in her petition. Further, the control of the firearm alleged by Annab would not result in negligent entrustment of the firearm to Caplan as he possessed the superior right to the firearm as owner. Since Caplan owned the firearm, the facts alleged in Annab's petition do not state a claim for negligent entrustment. Accordingly, any claim for negligent entrustment arising from the facts alleged in Annab's petition does not result in a waiver of sovereign immunity under the TTCA.
As the alleged facts raise claims other than negligent entrustment, this does not conclude our analysis.
3. Scope of Employment
On appeal, Harris County argues that Caplan was not within the scope of his employment when he discharged the firearm, so the act of firing the weapon could not be the basis of Annab's claim against it. Annab counters that there is no scope of employment requirement in a Section 101.102(2) claim, and that the act of firing is not the basis of her claim.
As explained above, Annab's claim against Harris County is that Harris County was negligent in authorizing or failing to withdraw authorization for Caplan to possess and use the firearm involved in the incident. Construing her pleadings liberally, Annab's claim against Harris County is not for the act of discharging the firearm, and therefore is not dependent on whether Caplan was within the scope of his employment at the time he did so. Harris County did not offer evidence in the trial court, and does not argue on appeal, that the authorization or failure to withdraw authorization of the firearm was done outside of the scope of employment. Accordingly, Harris County did not meet its burden of proof in conclusively establishing that there was no waiver of sovereign immunity under the TTCA and the trial court lacked jurisdiction.
Harris County did not conclusively establish the trial court lacked jurisdiction based on its arguments presented in the trial court. Apart from the facts alleging negligent entrustment, Annab has alleged that Harris County negligently used the firearm by authorizing and failing to withdraw authorization for Caplan's use and possession of the firearm. Liberally construing
803*803 Annab's pleadings and accepting all facts as true, these allegations are sufficient to demonstrate the trial court's jurisdiction to hear the case. We conclude the trial court erred in granting Harris County's plea, except as to Annab's negligent entrustment claim, based on the arguments presented and sustain Annab's third issue in part. We overrule Annab's third issue as to the negligent entrustment claim as she did not allege facts resulting in the waiver of sovereign immunity on that claim. In light of our holding as to Annab's third issue, we do not address her second issue as the burden never shifted back to Annab to raise an issue of material fact.
See Tex. R. App. P. 47.1;
Miranda, 133 S.W.3d at 228.
4. Injury Caused by Use of Tangible Personal Property
For the first time on appeal, Harris County contends the trial court's grant of its plea was proper as Annab does not allege a "use" of tangible personal property within the meaning of Tex. Civ. Prac. & Rem. Code § 101.021(2). Harris County further contends Annab failed to present evidence that Harris County's use of the firearm proximately caused her injury. Harris County argues the "real substance of the Appellant's complaint is that her injury was caused, not by the condition or use of property, but by the failure of Caplan's superiors to revoke his authorization to carry a weapon after a prior incident reportedly involving road-rage type behavior." Harris County alleges such actions are nonuse of information and do not state a cause of action under the Tort Claims Act. We consider these new arguments first raised on appeal.
See Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013) ("[A]n appellate court must consider all of a defendant's immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all.")
When the jurisdictional issues before the appellate court were not raised in the trial court, a plaintiff may not have had a fair opportunity to address the issues by amending her pleadings or developing the record.
Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). In such cases, the pleadings are construed in favor of the party asserting jurisdiction and, if necessary, a review of the record for evidence supporting jurisdiction is conducted.
Id. If the pleadings or record affirmatively negate the existence of jurisdiction, the suit should be dismissed.
Id."But if the pleadings and record neither demonstrate jurisdiction nor conclusively negate it, then in order to obtain dismissal of the plaintiff's claim, the defendant entity has the burden to show either that the plaintiff failed to show jurisdiction despite having had full and fair opportunity in the trial court to develop the record and amend the pleadings; or, if such opportunity was not given, that the plaintiff would be unable to show the existence of jurisdiction if the cause were remanded to the trial court and such opportunity afforded."
Id. If the governmental entity meets this burden, the suit should be dismissed.
Id. If the governmental entity does not meet this burden, the suit should be remanded to the trial court for further proceedings.
Id.
"Use" under Section 101.021(2) has been defined to mean "`to put into action or service; to employ for or apply to a given purpose.'"
Cowan, 128 S.W.3d at 246. The nonuse of property or the failure to act does not result in waiver of immunity under the TTCA.
See City of N. Richland Hills v. Friend, 370 S.W.3d 369, 372 (Tex. 2012) (nonuse of property will not result in waiver of immunity);
Univ. of Tex. Med. Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 389-90 (Tex. App.-Houston [14th Dist.] 2013, no pet.) ("failure to act does not invoke the Tort Claims
804*804 Act's limited waiver of immunity"). Further, a governmental entity does not "use" tangible personal property by merely providing, furnishing, or allowing access to it.
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016). Allowing someone to use personal property and nothing more does not equate to "use" of personal property.
See Cowan, 128 S.W.3d at 246. Additionally, without more, the "[u]se, misuse, or nonuse of information does not constitute use, misuse, or nonuse of tangible personal property under section 101.021(2)."
Prairie View A&M Univ. of Tex. v. Mitchell, 27 S.W.3d 323, 327 (Tex. App.-Houston [1st Dist.] 2000, pet. denied);
see also Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001). Annab's petition must be viewed in its entirety to determine whether waiver under the TTCA exists.
While Annab includes allegations of misuse of information in her pleadings, she also contends the result of Harris County's misuse of information was that Harris County "negligently used and misused property by continuing to approve, authorize, and qualify the use and possession of the firearm by Deputy Constable Caplan and such negligence was a proximate cause of the incident." Annab contends that overlooking or disregarding Caplan's previous employment history and incident history shows that Harris County's act of continuing to authorize and approve Caplan's possession and use of the firearm was negligent.
See Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 149 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (holding allegation of negligent use of property triggered waiver of immunity under section 101.021(2) where plaintiff relied on misuse of information to show that the use of property was negligent).
Further, Annab alleges Harris County "had control over the property and this constitutes a `use' for purposes of Section 101.021(2)." In arguing Harris County used the firearm through control, Annab relies on
Sipes v. City of Grapevine, 146 S.W.3d 273 (Tex. App.-Fort Worth 2004), rev'd in part on other grounds, 195 S.W.3d 689 (Tex. 2006). In
Sipes, the court stated "[t]here is no requirement under the [Tort Claims] Act that the City own the tangible property that causes the injury. The City may be liable in circumstances in which it assumes control over tangible personal property and the negligent exercise of that control results in personal injury."
Id. at 281.
Annab alleges Harris County, independent of Caplan, used the firearm; however, she does not affirmatively allege facts by which Harris County's authorization of the firearm put it "into action or service." Further, the allegations do not establish Harris County exercised control over the firearm, independent of Caplan. In her brief to this court, Annab contends the facts alleged establish Caplan could not carry or use the firearm — even while off duty — without Harris County's approval and authorization. Annab does not cite to her petition in support of this contention and we have not found such factual allegations therein.
In an effort to show use and control, Annab cites to the testimony of Chief Deputy Constable Armando Tello, Harris County's designated representative, which Annab submitted in response to Harris County's plea. Tello testified it was his opinion that Harris County should not have hired Caplan based on his employment history. Additionally, Tello testified he would have recommended dismissal of Caplan at least twice in response to incidents that occurred before he shot Annab. Annab also points to the Harris County policy on authorized duty weapons attached as an exhibit to Tello's deposition. The policy states "Harris County Precinct
805*805 6 Constable's Office employees are only authorized to carry and use weapons, lethal and non-lethal, approved by the Constable or designee." However, the policy in the record is undated, and Tello's testimony does not establish that the policy was in effect prior to the November incident in which Annab was injured, nor does it address to what extent the policy applied to deputies while off duty. This evidence submitted by Annab does not affirmatively establish Harris County's use or control over the firearm. We conclude the facts alleged by Annab in her pleading, and the evidence submitted, do not conclusively establish Harris County's use of the firearm under Section 101.021(2).
Waiver of immunity under Section 101.021(2) also requires Harris County's use of the firearm be the proximate cause of Annab's injury.
See City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016). "Proximate cause requires both `cause in fact and foreseeability.'"
Id. For Harris County's use of the firearm to be a cause in fact, the use must be "`a substantial factor in causing the injury and without which the injury would not have occurred.'"
Id.; see also Univ. of Tex. M.D. Anderson Cancer Ctr. v. Baker, 401 S.W.3d 246, 257 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). Use of the property must have actually caused the injury.
Sampson, 500 S.W.3d at 389;
Brown v. Houston Indep. Sch. Dist., 123 S.W.3d 618, 620 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).
Annab contends that Harris County's use of the firearm was the proximate cause of her injuries. However, the facts alleged in Annab's petition do not demonstrate that Harris County's approval, authorization, and qualification of the use and possession of the firearm were the proximate cause of her injuries. As Annab has not alleged facts affirmatively demonstrating personal injury proximately caused by Harris County's use of tangible personal property, we conclude she has not meet her burden of affirmatively establishing jurisdiction based on the pleadings.
We conclude the pleadings and record do not demonstrate jurisdiction or conclusively negate it. Given the new arguments regarding use that Harris County advances for the first time on appeal, it has not demonstrated that Annab failed to show jurisdiction despite having full and fair opportunity to litigate the issue in the trial court. Nor has Harris County established that Annab would be unable to show the existence of jurisdiction if this case were remanded. Accordingly, we reverse the trial court's grant of Harris County's plea and remand this case for further proceedings.
See Rusk State Hosp., 392 S.W.3d at 96.
III. CONCLUSION
We affirm the trial court's judgment granting Harris County's plea on Annab's negligent entrustment claim. We reverse the remainder of the trial court's judgment and remand for proceedings consistent with this opinion.
(Donovan, J., dissenting.)
John Donovan, Justice, dissenting
Because I would affirm the trial court's order on the basis that Annab's pleadings demonstrate incurable defects in jurisdiction, I respectfully dissent.
The Texas Tort Claims Act (TTCA) waives immunity for injuries caused by the negligent use of tangible property but this limited waiver does not apply to intentional torts. Tex. Civ. Prac. & Rem. Code §§ 101.021(2) and 101.057. In order to be viable, the claim cannot arise out of an intentional tort.
City of Watauga v. Gordon, 434 S.W.3d 586, 587 (Tex. 2014). Annab's pleadings state that Caplan shot and
806*806 severely injured her, clearly an intentional tort. Thus, to maintain a negligence claim against Harris County, Annab's pleadings must allege facts that, taken as true, reflect her claim does not "arise out of" being intentionally shot by Caplan.
The tangible property identified in Annab's pleadings is Caplan's personal gun that he used to shoot her.
[1] Annab alleges Harris County had control over Caplan's personal gun because it authorized Caplan to use it. Annab alleges that Harris County's negligence regarding that authorization was a proximate cause of her injuries. These allegations are reflected in the following statement from her petition:
Specifically, [Caplan] using the Glock gun which the County had repeatedly approved and qualified and thus, had allowed Deputy Constable Caplan to retain possession of such Glock gun, Deputy Constable Caplan, acting under his indicia of authority as a Deputy Constable; used the approved and qualified Glock gun and shot and severely injured the Plaintiff.
In
Delaney, a university failed to fix the lock on a door that provided access to a campus dormitory despite complaints.
835 S.W.2d at 57. An intruder entered through that door, found the plaintiff in her room, and raped her.
Id. The plaintiff sued the university for failing to repair the lock and breach of contract to provide a secure residence.
Id. at 60. The court expressly did not decide whether the plaintiff's negligence claims fell within the waiver of immunity contained in the TTCA or whether they were barred by immunity for other reasons.
Id. at 60-61. The court only concluded that it was error for the lower courts to apply section 101.057(2) to the plaintiff's claims. The court gave two reasons: (1) intentional conduct intervening between a negligent act and the result does not always vitiate liability for the negligence; and (2) "arising out of," as used in section 101.057(2), "requires a certain nexus" between the claim and an intentional tort for the provision to apply.
Id. 59-60. Thus
Delaney stands for the proposition that an intentional tort precludes a negligence claim when there is a nexus between the two.
The Texas Supreme Court in
Young disapproved the lower court's conclusion that regardless of the claims for negligent employment, entrustment, and supervision, the officer's intentional tort precluded application of the TTCA.
[2] Young, 787 S.W.2d at 51. The court then found no error requiring reversal of the trial court's dismissal of the petitioners' claims.
Id. Thus the court did not overturn the Court of Appeal's determination that the officer's intentional tort — driving his car into oncoming traffic in an attempted suicide — precluded application of the TTCA.
See Young v. City of Dimmitt, 776 S.W.2d 671, 673 (Tex. App.-Amarillo 1989), writ denied per curiam, 787 S.W.2d 50 (Tex. 1990). Thus while
Young stands for the proposition that negligence claims
may arise from acts other than the intentional
807*807 tort, it does not support a finding that such is the case here.
787 S.W.2d at 51.
Ryan involved multiple intentional torts.
889 S.W.2d at 341. This court recognized that an intervening intentional tort does not automatically bar the negligence claim "simply because [the intentional tort] played a role."
Id. at 343. We then determined the tangible personal property alleged to have been used, diagnostic tests and evaluation forms to determine the youth's placement, was not property under the TTCA. We further held the causal nexus required under section 101.021(2) was absent because the tests and forms were not the "direct devices" which proximately caused the plaintiff's injuries.
Id. at 344-45; Tex. Civ. Prac. & Rem. Code § 101.021(2). Like
Young, Ryan acknowledges an intervening intentional tort does not
necessarily preclude a negligence claim. But unlike
Ryan, the nexus we are concerned with is whether the claim arises from an intentional tort.
See Delaney, 835 S.W.2d at 59; Tex. Civ. Prac. & Rem. Code § 101.057.
As this court recognized in
Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 806-807 (Tex. App.-Houston [14th Dist.] 1997), rev'd on other grounds, 5 S.W.3d 654 (Tex. 1999), the nexus between the use of the property and the alleged negligent conduct causing the injury is the critical inquiry. In that case, the plaintiff was raped by a police officer in the City's police car.
Id. at 789. The plaintiff alleged the City was negligent in hiring the officer, retaining him, entrusting him with a badge and a police car, and in monitoring his activities and failing to discover his personal and emotional problems.
Id. at 804. The plaintiff argued her claim did not arise from the officer's intentional tort, but from the City's negligent supervision and monitoring of the officer and his use of its police car, which was the tangible personal property in that case.
Id. at 805. We determined the patrol car was not the direct device that caused the plaintiff's injury and the required causal nexus for liability was absent, stating the cause of the plaintiff's injury was the officer's intentional assault.
Id. at 807.
Annab's injuries were caused by Caplan's gun and there are no allegations of a causal connection between the alleged negligent conduct and Caplan's use of that gun.
See McCord v. Mem'l Med. Ctr. Hosp., 750 S.W.2d 362 (Tex. App.-Corpus Christi 1988, no writ) (the use of the nightstick against the plaintiff was committed by the security guard in the course of an intentional tort, precluding plaintiff's claim);
Townsend v. Mem'l Med. Ctr., 529 S.W.2d 264 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.) (the essence of the plaintiff's complaint was the rape, an intentional tort excluded by the TTCA). There are no factual allegations in Annab's pleadings as to how Harris County used or misused the gun.
See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587-88 (2001) (recognizing that non-use of property does not waive immunity under the TTCA but misuse is within the waiver). It is not alleged that Harris County had any right to take Caplan's gun or that if Harris County had never authorized, or withdrawn its authorization, for Caplan to use the gun he would not have been in lawful possession of his own gun in his own personal car.
[3]
Because Annab's pleadings, if taken as true, establish her claims arise from an intentional tort, I would find her claims against Harris County for negligence
808are precluded by the TTCA and affirm the trial court's order.
[1] The record contains no reporter's record from the hearing.
[2] Based on our conclusion, we also sustain Annab's first issue that the trial court erred if it granted Harris County's plea based on the intentional torts exclusion for the same reasons.
[3] In her brief, Annab states she is not making a claim against Harris County for negligent hiring, retention, training, or supervision. Accordingly, we limit our discussion to Harris County's argument related to negligent entrustment.
[1] Annab conceded at oral argument the gun was owned by Caplan and he was not on duty.
[2] As the majority notes, none of these claims are at issue in this case.
[3] Harris County's assertion in its plea to the jurisdiction that Caplan was driving his own car has never been disputed.
CASE INFO AND LINKS
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HARRIS COUNTY, TEXAS v. LORI ANNAB; from Harris County; 14th Court of Appeals District ( 14-16-00348-CV, 524 SW3d 793, 03-14-17) |
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The Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
Justice Blacklock delivered the opinion of the Court.
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