This week the Supreme Court of Texas released four opinions and no grants. In one opinion the Court addressed governmental immunity under the Texas Tort Claims Act in the context of an off-duty shooting by a deputy constable.
In Harris County v. Lori Annab, an off-duty constable shot Ms. Annab with his service weapon “in a fit of road rage.” Annab sued Harris County arguing that governmental immunity under the Texas Tort Claims Act had been waived because of the use of tangible personal property during the shooting. Specifically, Annab alleged that the “use of tangible personal property” occurred when Harris County hired the deputy and authorized him to possess and use a service weapon. Harris County filed a plea to the jurisdiction, which the trial court granted dismissing the case. The 14th Court of Appeals reviewed and determined that Annab had failed to establish waiver of immunity, but remanded the case for additional discovery.
On appeal, the Texas Supreme Court emphasized that “use” means “to put or bring into action or service.” Applying this definition, the Court determined that Annab’s allegation that Harris County “used” the deputy’s firearm by authorizing him to use or possess it was insufficient to waive immunity under the Texas Tort Claims Act. Further, the Court clarified that waiver of immunity is not invoked by allegations that a governmental unit failed to use an employee’s history to take a particular action because “failure to use” is not “use” of tangible personal property. Finally, the Court noted that “Annab’s claims proceed from an untenable factual premise” as Harris County did not make the firearm available to the constable. Specifically, the evidence established that the county did not issue the firearm, the constable owned the weapon prior to his employment, and that the County’s policies authorizing use of a firearm while on-duty have no effect on its employees’ right to carry a firearm while off-duty. For these reasons, the Court affirmed the lower courts’ determination that Annab failed to establish waiver of governmental immunity but reversed the appellate court’s remand for additional discovery.