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Click here for the full text of this decision FACTS:The facts as pleaded by family of Officer Aubrey Hawkins tell the story of how seven inmates (the Seven) escaped from the Connally Unit in Huntsville, commandeered at least 14 of the state’s weapons in the back tower, escaped through the back gate, and 11 days later and 300 miles away, used the weapons to kill Hawkins when he attempted to apprehend them. Hawkins’ family brought suit against the Texas Department of Criminal Justice (TDCJ), alleging negligence. The TDCJ filed a plea to the jurisdiction, asserting that its sovereign immunity was not waived under the Texas Tort Claims Act (TTCA). The trial court denied the plea, without giving reasons. TDCJ brought this interlocutory appeal, as authorized under the civil practice and remedies code. HOLDING:Because the court concludes that immunity was not waived under the TTCA, it vacates the trial court’s order denying the plea and renders judgment for TDCJ dismissing the cause of action. The TTCA provides a limited waiver of governmental immunity when “use” of property is involved. Specifically, the court states, immunity is waived if injury or death is caused by a “condition or use of tangible personal or real property.” Therefore, the court must determine whether the Hawkins family has pleaded a claim that falls within that provision. They assert waiver of immunity based on the state actors’ mishandling of the weapons, including a prison guard’s alleged misuse of property by unholstering his sidearm and the alleged negligent use of the prison tower to store weapons. TDCJ argues that the circumstances do not constitute a “condition or use” of tangible personal or real property sufficient under the statute to effect waiver. They argue the TDCJ did not provide the weapons to the escapees, but rather they were stolen. Also, the guns were used to kill Hawkins, not by any TDCJ employee, but by the escapees. Further, they assert, the statute’s “proximate cause” requirement is not met because the government’s involvement with the subject property was too remote “geographically, temporally, and causally” to have proximately caused Hawkins’ injury and death. The court concludes that, under the facts as pleaded, the TDCJ did not use the weapons within the meaning of the TTCA’s waiver of governmental immunity. The court further concludes that the factual allegations in this case cannot meet the proximate-cause requirement under the statute. The court states that the Texas Supreme Court has determined that immunity is waived only when the use is by the governmental unit itself. The Hawkins family alleges that the guard negligently misused his weapon by unholstering it and the tower was misused as a weapons depot. But the court concludes that this alleged use by the TDCJ amounts to no more than allowing access to the weapons. The court holds that merely allowing access to property does not constitute use by a governmental unit so as to effect waiver under the TTCA. In addition, the court notes that the TTCA’s use provision requires that the personal injury or death be caused by a condition or use of tangible personal or real property. The court states that property does not cause injury if it does no more than furnish the condition that makes the injury possible. The court points out that Officer Hawkins’ injury occurred 11 days later and 300 miles away from the state employee’s alleged misuse of the property. Therefore, the court holds that the injurious use of the state-issued property 11 days after the escape and 300 miles away was too remote to satisfy the proximate-cause requirement of the “use” provision of the TTCA. Accordingly, the court concludes that the facts as pleaded fail to establish waiver of immunity under TTCA 101.021(2). Thus, the pleadings fail to establish that the trial court has subject-matter jurisdiction in this case. OPINION:O’Neill, J.; O’Neill, Lang, and Lang-Miers, JJ.

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