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Click here for the full text of this decision FACTS:While appellant was driving early one morning in 1997, John Leo Nichols, an on-duty police officer for the Houston Independent School District, flashed the emergency lights on his car and used a bullhorn to order appellant to stop, which she did. Nichols accused appellant of being drunk, began making sexually suggestive comments to her and forced her to lift her shirt. He then ordered appellant to follow him in her truck to a high school parking lot. Once there, Nichols sexually assaulted appellant in her truck. Appellant sued HISD for negligence and gross negligence. The trial court granted HISD’s motion for summary judgment, which was based on immunity under the Tort Claims Act. Appellant appeals, arguing that HISD was not entitled to immunity because her injury resulted from the use of Nichols’ patrol car. HOLDING:Affirmed. The court confirms that immunity is waived under the TCA when the school district’s employee, acting within the scope of his employment, causes an injury arising from the operation or use of a motor-driven vehicle. The court interprets “use” to mean “to put or bring into action or service; to employ for or apply to a given purpose.” The court cites Holder v. Mellon Mortgage Co., 954 S.W.2d 786 (Tex.App. Houston [14th Dist.] 1997), which held that a patrol car was not the “direct device” leading to the rape of a woman by a police officer during a traffic stop. Even though Holder was reversed on other grounds and was brought under the exception to the TCA of tangible use of personal property, the court finds the same rationale applies here. The court also cites a four-part test relied upon in Mid-Century Ins. Co. of Tex. v. Lindsay, 997 S.W.2d 153 (Tex. 1999), and insurance case: “For an injury to fall within the”use’ coverage of an automobile policy (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.” Applying that test here, the court finds that the injury did not occur within the “territorial limits” of the patrol car, and that the patrol car did not itself produce the injury, it only assisted Nichols in accomplishing his unlawful purpose. OPINION:Fowler, J.

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