PEGGY JOHNSON v. JOHNSON COUNTY, TEXAS; from Johnson County; 10th district
10-07-00095-CV, ___ S.W.3d ___, 01-30-08, pet. denied May 2008) (Tort Claims Act, immunity)

AFFIRMED: Opinion by Chief Justice Gray  
Before Chief Justice Gray, Justices Vance and Reyna
10-07-00095-CV Peggy Johnson, Individually and as Administratrix of the Estate of Eugene Johnson, and
as Next Friend of David Johnson and Jonathan Johnson v. Johnson County
Appeal from 18th District Court of Johnson County

DISSENTING OPINION: Dissenting Opinion by Justice Vance  


Eugene Johnson hanged himself with the mattress cover in a Johnson County jail cell.  Appellant brought
suit against Johnson County, and now appeals the trial court’s dismissal of her cause of action.  We affirm.

   In Appellant’s one issue, she contends that the trial court erred in granting Johnson County’s plea to the
jurisdiction, which was premised upon governmental immunity.

   “Absent an express waiver of its sovereign immunity, the State is generally immune from suit.”  State v.
Holland, 221 S.W.3d 639, 643 (Tex. 2007); accord Lowe v. Tex. Tech. Univ., 540 S.W.2d 297, 298 (Tex.
1976); Tex. Highway Dep’t v. Weber, 147 Tex. 628, 630, 219 S.W.2d 70, 71 (1949).  “In Texas, the bar of
sovereign immunity is a creature of the common law and not of any legislative enactment.”  Tex. A&M Univ.
v. Lawson, 87 S.W.3d 518, 520 (Tex. 2002); see Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006).  
“The appurtenant common-law doctrine of governmental immunity similarly protects political subdivisions of
the State, including counties . . . .”  Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivs.
Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006); see Harris County Flood Control Dist. v.
Mihelich, 525 S.W.2d 506, 508 (Tex. 1975).  The Supreme Court “ha[s] construed that immunity to deprive
the courts of subject matter jurisdiction over suits against the state or its subdivisions.”  State v. Shumake,
199 S.W.3d 279, 283 (Tex. 2006) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004)).  

   “A governmental unit in the state is liable,” however, for “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 (Vernon 2005).  
“Governmental unit” includes counties.  Id. § 101.001(3)(B) (Vernon 2005).

   “Appellate courts reviewing a challenge to a trial court’s subject matter jurisdiction review the trial court’s
ruling de novo.”  Miranda, 133 S.W.3d at 228 (citing Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.
W.3d 849, 855 (Tex. 2002)).  “When a plea to the jurisdiction challenges the pleadings, . . . [w]e construe
the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.”  Miranda at 226.  “[I]f a plea
to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted
by the parties when necessary to resolve the jurisdictional issues raised . . . .”  Id. at 227.  “When we
consider evidence in this context, ‘we take as true all evidence favorable to the nonmovant [i.e., the
plaintiff].  We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.’”  City
of Waco v. Lopez, 183 S.W.3d 825, 827 (Tex. App.—Waco 2005, pet. granted on other grounds) (quoting
Miranda at 228) (alteration in Lopez).

   Johnson County relies primarily on San Antonio State Hospital v. Cowan.  See San Antonio State Hosp.
v. Cowan, 128 S.W.3d 244 (Tex. 2004).  In Cowan, when the decedent was admitted to the hospital, the
hospital allowed him to keep his suspenders and walker with him.  Id. at 245.  He used the suspenders and
part of the walker to hang himself.  Id.  The Texas Supreme Court held that the hospital, in providing the
decedent with the suspenders and walker, did not use them within the meaning of Section 101.021.  “[S]
ection 101.021(2) waives immunity for a use of personal property only when the governmental unit is itself
the user.”  Id. at 245-46; Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); accord LeLeaux v.
Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).  “Use” means “to put or bring into
action or service; to employ for or apply to a given purpose.”  Cowan at 246 (quoting Beggs v. Tex. Dep’t of
Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App.—San Antonio 1973, writ ref’d));
accord Bishop at 583.  “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.”  Cowan at 246; see Bishop at 583; Forgan v. Howard County, 494 F.3d 518, 521
(5th Cir. 2007).[2]

   In Texas A & M University v. Bishop, similarly, faculty advisers of a drama club or the director of a
performance by the club provided a Bowie knife for use in the performance.  Bishop, 156 S.W.3d at 581-
82.  In the course of the performance, one student stabbed another with the knife.  Id. at 582.  The
Supreme Court held that, that did not constitute a use of the knife by the advisers within the meaning of
Section 101.021.  Id. at 583.  

   Appellant attempts to distinguish Cowan.  See Cowan, 128 S.W.3d 244.  Appellant argues: “Unlike the
state mental hospital” in Cowan, “the County did more than simply make available to Eugene his own
property by failing to take it away from him.  In the present case, the County affirmatively issued Eugene
the bedding and locked him into the cell actually used in the suicide.”  (Br. at 17.)  Appellant argues that
her case is more similar to that in Overton Memorial Hospital v. McGuire than to Cowan.  See Overton Mem’
l Hosp. v. McGuire, 518 S.W.2d 528 (Tex. 1975) (per curiam).  In McGuire, the plaintiff was injured when he
fell out of a hospital bed that lacked side rails.  Id. at 528.  But the Supreme Court has held that cases such
as McGuire “represent ‘the outer bounds of what [is] defined as use of tangible personal property,’ and ha
[s] applied them narrowly . . . .”  Bishop, 156 S.W.3d at 584 (quoting Kerrville State Hosp. v. Clark, 923 S.W.
2d 582, 585 (Tex. 1996)).  

   Appellant relies primarily on Martinez v. City of Brownsville, citing it for the proposition that “jail cell bars
used by an inmate to hang himself constituted the use of tangible personal property.”  (Br. at 13 (citing
Martinez v. City of Brownsville, No. 13-00-425-CV, 2001 Tex. App. LEXIS 6131, at *23 (Tex. App.—Corpus
Christi Aug. 31, 2001, pet. denied) (not designated for publication)).)  Assuming that Martinez was correctly
decided, it was decided before and is effectively overruled by Cowan.  See Cowan, 128 S.W.3d 244.

   Johnson County’s providing Eugene Johnson with a jail cell and mattress cover is closer to the drama-
club advisers’ providing students with a knife to use in a production in Bishop, or to the hospital’s making
the patient’s suspenders and walker available to him in Cowan, than to the hospital’s use of a bed to treat a
patient in McGuire.  See Bishop, 156 S.W.3d 580; Cowan, 128 S.W.3d 244; McGuire, 518 S.W.2d 528.  
Johnson County’s incarcerating Eugene Johnson in a jail cell containing a mattress cover did not constitute
a use of that property proximately causing his death within the meaning of Civil Practice and Remedies
Code Section 101.021.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021.  Evidence favorable to Appellant
being taken as true, the trial court did not err in granting Johnson County’s plea to the jurisdiction and
dismissing Appellant’s cause of action.[3]  We overrule Appellant’s issue.

   Having overruled Appellant’s sole issue, we affirm.


Chief Justice

Before Chief Justice Gray,

   Justice Vance, and

   Justice Reyna

   (Justice Vance dissenting)


Opinion delivered and filed January 30, 2008



     [1] This memorandum opinion is designated an “Opinion” pursuant to Texas Rule of Appellate
Procedure 47.4 because the author of a dissenting opinion opposes its designation as a memorandum
opinion.  See Tex. R. App. P. 47.4.  That dissenting opinion is then disingenuous in its criticism that the
“opinion” omits a recitation and discussion of Appellant’s pleadings and evidence.  Such a recitation and
discussion is unnecessary in a memorandum opinion.

     [2] The facts of Forgan are strikingly similar to those of this case.  See Forgan, 494 F.3d at 519.  In
Forgan the decedent used county-issued clothing to hang himself while in jail.  Id.  The plaintiffs brought
suit in federal district court under, and the federal court applied, Texas law under Erie.  See Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938).  The federal court determined that there was no waiver of immunity under
Texas law on the facts of that case.  Forgan at 520-21.  We believe that the federal court correctly
interpreted and applied Texas law and, while Forgan is not binding precedent, it is certainly persuasive

     [3] Appellant also pleaded a cause of action for premises defect.  To the extent that Appellant does not
attack the independent ground raised in the plea to the jurisdiction as to Appellant’s other cause of action,
we affirm.  See Fox v. Wardy, No. 08-04-00114-CV, 2005 Tex. App. LEXIS 5879, at *6 (Tex. App.—El Paso
July 28, 2005, pet. denied); Juarez v. Miller, No. 05-04-01305-CV, 2005 Tex. App. LEXIS 4331, at *2 (Tex.
App.—Dallas June 7, 2005, pet. denied) (mem. op.); Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676,
680-81 (Tex. App.—Houston [1st Dist.] 2002, no pet.).