Harris County v Annab, No. 17-0329, — S.W.3d. — (Tex. May 11, 2018)
This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court addresses when a Plaintiff is entitled to remand and should be permitted to amend in order to plead a waiver of immunity.
Kenneth Caplan shot Lori Annab in a fit of road rage. Caplan was a Harris County deputy constable, but he was off duty. Despite the fact Caplan fired his personal firearm from his personal vehicle off duty, Annab sued Harris County, Caplan’s employer, for the use of tangible personal property. The trial court granted the county’s plea to the jurisdiction and dismissed the case. The court of appeals agreed but remanded the case to allow Annab to replead and conduct discovery. The County filed a petition for discretionary review which the Texas Supreme Court granted.
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 TTCA immunity waiver since merely making property available is not “use” for purposes of the TTCA. Further, no waiver exists under Annab’s argument the County should not have hired or should have earlier fired Caplan due to his consistent disciplinary file. Additionally, the County did not make Caplan’s private weapon available to him. Annab has not articulated how Caplan’s right to possess his personal firearm on his personal time was dependent on the County’s approval. 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 the plaintiff would be unable to show the existence of jurisdiction, then the case should be dismissed without a remand. 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. “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.” As a result, the court of appeals erred by ordering remains.