CAUSE NO. 13-14-00570-CY

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS
JAMES WILKINS,

Appellant V. NIJECES COUNTY, TEXAS,

Appellee
On Appeal from Cause No. 2013-DCV-5868-D, In the 105

thJudicial District Court of Nueces County, Texas

APPELLEE'S BRIEF

LAURA GARZA JIMENEZ, NUECES COUNTY ATTORNEY BY: JENNY CRON Assistant County Attorney State Bar No. 00796237 JUAN J. MALDONADO, III Assistant County Attorney State Bar No. 24083436 901 Leopard, Room 207 Corpus Christi, TX 78401 (361) 888-0391 (361) 888-0577 (fax) APPELLEE WAIVES ATTORNEYS FOR APPELLEE ORAL ARGUMENT ACCEPTED 13-14-00570-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 11/6/2015 3:05:28 PM Dorian E. Ramirez

CLERK

### CAUSE NO. 13-14-00570-CY

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS

JAMES WILKINS

Appellant

V. 

### NUECES COUNTY, TEXAS,

Appellee On Appeal from Cause No. 2013-DCV-5868-D, In the 105th

Judicial District Court of Nueces County, Texas

APPELLEE'S BRIEF

TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF APPEALS: COMES NOW APPELLEE, NTJECES COUNTY, TEXAS, files this its Brief , 

### and respectfully shows:

1

### IDENTITY OF PARTIES AND COUNSEL

Mr. James Wilkins, Appellant Pro Se TDJC: 01970009 SID: 10123934 Texas Department of Criminal Justice Fabian Dale Dominguez State Jail 6535 Cagnon Road San Antonio, Texas, 78252-2202 Nueces County, Texas, Appellee Jenny Cron, Counsel for Appellee Assistant Nueces County Attorney State Bar No. 00785653 Juan J. Maldonado, Counsel for Appellee Assistant Nueces County Attorney State Bar No. 24083436 901 Leopard, Rm. 207 Corpus Christi, TX 78401 (361) 888-0391 (361) 888-0577 Facsimile

2

### TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .2 TABLEOF CONTENTS .......................................................................................3,4 INDEX OF AUTHORITIES ............................................................................ 5,6,7,8 

### STATEMENTOF THE CASE .................................................................................9 RESPONSE TO ISSUES PRESENTED ................................................................. 10 STATEMENTOF FACTS......................................................................................11 I. Statement of Procedural History .....................................................................11,12 II. Underlying Facts (Rebuttal) .........................................................................12,13 STANDARD OF REVIEW.....................................................................................13 I. Plea to the Jurisdiction .........................................................................................13 SUMMARY OF THE ARGUMENT............................................................13,14,15 ARGUMENT..................................................................................................... 15-29 

### I. Plea to the Jurisdiction Pursuant to Governmental Immunity .............................15 A. Preliminary Matter.................................................................................... 15,16,17 

### B. Texas Tort Claims Act CPRC § 

### 101.021 ......................................................17,18 C. Requisite Waiver of Immunity Elements under CPRC§ 101.021(1 )(A)(B) ......18 i. "Arises From" Motor-Driven Equipment & Vehicles ..................................18,19 ii. Motor-Driven Vehicle or Equipment..................................................................19 iii. Operation or Use ................................................................................................19

1

### D. Requisite Waiver of Immunity Elements under CPRC § 

### 101.021(2).................20

i. Tangible Personal Property ..................................................................................20 ii. Caused By ......................................................................................................20,2 1 iii. Use of Property ..................................................................................................21 iv. Were it a Private Person .....................................................................................22 E. Application to Issues Presented .....................................................................22-29 i. Subject Mailer Jurisdiction...................................................................................22
a. CPRC §101.0121(1)(A)(B) ............................................................................22,23 b. CPRC 101.0121(2) ............................................................................................23 ii. Non-compliance to Rule of Texas Commission on Jail Standards.....................23 a.Rule 277.8 Bedding & Linens..................................................... 23,24,25 

### b.Rule 259.138 Holding Cells............................................................. 25,26 

### iii. Alleged Negligent Misrepresentation, Fraud & Forgery ..............................26,27 iv. Personal Injury .............................................................................................28,29 II. Conclusion Concerning Plea to the Jurisdiction.................................................29 PRAYER.................................................................................................................29 SIGNATUREOF COUNSEL .................................................................................30 CERTIFICATE OF COMPLIANCE ......................................................................31 CERTIFICATEOF SERVICE................................................................................32 APPENDIX.............................................................................................................33

11

### INDEX OF AUTHORITIES

STATE STATUTES 

### AND RULES 

### 37 TEx. ADMIN. CODE §§ 

### 251-301 (West 2015)......................................................22 37 TEx. ADMIN. 

### CODE §297.9 (West 2015) .............................................................24 Tex. Civ. Prac. & Rem. Code Ann. § 

### 101.021 (West 2015)..............................17,18 Tex. Civ. Prac. & Rem. Code Ann. § 

### 101.021(1)(A)(B) (West 2015) ..............18,22 Tex. Civ. Prac. & Rem. Code Ann. § 

### 101.021(2) (West 2015) ............................. 

### 23 Tex. Civ. Prac. & Rem. Code Ann. § 

### 101.057 (West 2015) ........................21,26,27 Tex. R. App. P. 38.1(d) ............................................................................................9 Tex. R. App. P. 38.1(i) ............................................................................................16 Tex. R. App. P. 38.1(g) ...........................................................................................11 Tex. R. App. P. 38.2(a)(1)(B) ..............................................................................9,11 CASES Bland-I.S.D. v. Blue, 

### 34 S.W.3d 547 (Tex. 2000) ....................................................................................13 Boyles v. Kerr, 

### 855 S.W.2d 593, 598 (Tex. 1993) ..........................................................................25 Cavnar v. Quality Control Parking, Inc., 

### 696 S.W.2d 549, 

### 551 (Tex.1985) ...........................................................................25 City off. Richland Hills v. Friend, 

### 370 S.W.3d 369, 372 (Tex. 2012) .....................................................................2 1,23 City of Tyler v. Likes, 

### 962 S.W.2d 489, 494 (Tex. 1997) .....................................................................22,24 Dallas County Mental Health & Mental Retardation v. Bossley, 

### 968 S.W.2d 339 (Tex. 1998) ...................................................................19,21,24,25
5

### Dallas v. Harper,



### 913 S.W.2d 207 (Tex. 1995) ...................................................................................20 Duhart v. State, 

### 610 S.W.2d 740, 741 (Tex. 1980) ..........................................................................28 Estate of Banks v. Chambers Mern'l Hosp. Auxiliary, Inc., 

### 865 F.2d 696 (5th Cir. 1989) ..................................................................................21 Federal Land Bank Assoc. v. Sloane, 

### 825 S.W.2d 439 (Tex.1991) ...................................................................................29 Fed. Sign. v. Tex. S. Univ., 

### 951 S.W.2d 401, 409 (Tex. 1997) ..........................................................................28 Gr i 

### ffin v. Hawn, 

### 161 Tex. 422, 341 S.W.2d 151, 152 (1960) ...........................................................28 Hernandez v. Hernandez, 

### 318 S.W.3d 464, 466 (Tex.App.—E1 Paso 2010, no pet.) .....................................16 Hosner v. DeYoung, 

### iTex. 764, 769 (1847) ...........................................................................................28 Inpetco, Inc. v. Texas Am. Bank/Houston N.A., 

### 722 S.W.2d 721 (Tex. App.—Houston [14th Dist.] 1986, writ refused) ...............16 In re Kellogg Brown & Root, Inc., 

### 166 S.W.3d 732 1

737 (Tex. 2005) ..........................................................................16 Kassen v. Hatley, 

### 887 S.W.2d 4 (Tex. 1994) ......................................................................................19 Kaufman County v. Leggett, 

### 396 S.W.3d 24, 28 (Tex.App.—Dallas 2012, pet. denied) ....................................17 Kerrville State Hosp. v. Clark, 

### 923 S.W.2d 582 (Tex. 1996) .........................................................................19,21,23 Kirk v. Garza, 

### 875 S.W.2d 24, 24 (Tex.App.—Houston [1st Dist.] 1994, writ denied) ................16

### Lowe v. Harris County Hosp. Dist.,

809 S.W.2d 502, 504 (Tex. App.—Houston [14th Dist.] 1989, no writ) ...............20 Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) ......................................................................16 Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex. 1970) .....................................................................28 Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg By & Through Lindburg, 766 S.W.2d 208 (Tex. 1989) ..................................................................................19 Russell v. Texas Department of Human Resources, 746 S.W.2d 510, 513 (Tex.App.—Texarkana 1988, writ denied) .........................21 Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015), reWg denied (Mar. 13, 2015) .......................... 18 San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.2004) ...........................................................................19 Tex. Dep 't of Grim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) ............................................................................18 Tex. Dep 't of Health v. Rocha, 102 S.W.3d 348, 353 (Tex.App.—Corpus Christi, 2002, no pet.) .........................17 Tex. Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) .....................................................................17 Tex. Dep 't. of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) .......................................................................20,26 Tex. Highway Dep 't v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71 (1949) ...............................................................28 Tex. Nat Res. Gonserv. Comm 'n v. White, 46 S.W.3d 864, 868 (Tex.2001) ........................................................................19,24 TRST Corpus, Inc. v. Financial Center, 9 S.W.3d 316 (Tex. App.—Houston [14 th Dist.] 1999, pet. denied) .....................13

7Union Pump Co. v. Allbritton,



### 898 S.W.3d 773, 776 (Tex. 1995) ................................................................2 1,24,25 Univ. of Tex. MD. Anderson Or. v. King, 

### 417 S.W.3d 1,4 (Tex.App.—Houston [14th Dist.] 2013, no pet.) ...................21,23 Univ. of Tex. Med. Branch at Galveston v. York, 

### 871 S.W.2d 175, 179 (Tex. 1994) ......................................................................20,26 Walton v. Tex. Dep 't of Crim. Justice, 

### No. 13-07-00656-CV, 2008 WL 3868113 at *1 (Tex.App.—Corpus Christi Aug. 21, 2008, pet. denied) .............................................................................................27 W.D. Hat/en Co. v. Dodgen, 

### 158 Tex. 74, 308 S.W.2d 838, 840 (1958) .............................................................28 Wheeler v. Green, 

### 157 S.W.3d 439,444 (Tex.2005) ...........................................................................16 Wise Reg '1 Health Sys. v. Brittain, 

### 268 S.W.3d 799, 807-08 (Tex.App.—Fort Worth 2008, no pet.) ..........................21



## E.

### STATEMENT OF THE CASE

Appellee is dissatisfied with Appellant's statement of the case because it is unsupported by record references and discusses the facts. Tex. R. App. P. 38.1(d). Appellee offers the following statement of the case pursuant to Tex. R. App. P. 38.2(a)(1)(B): Mr. Wilkins originally sued Nueces County in district court for negligence, gross negligence, fraud, and code violations. [CR. 102]. Defendant removed the action to federal court based on federal question jurisdiction [CR. 102]. The federal court dismissed all of Plaintiffs federal constitutional and statutory claims with prejudice and remanded Plaintiffs state law causes of actions to district court. [CR.102-107]. After, Defendant filed its Plea to the Jurisdiction 

### and a hearing was held wherein the district court granted Nueces County's Plea to the Jurisdiction 

### and dismissed all of Plaintiffs causes of action with prejudice, [RR. 1- 12], from which Mr. Wilkins appeals.

IJRESPONSE 

### TO ISSUES PRESENTED

1. The trial court did not err in granting Nueces County's Plea to the Jurisdiction as the allegations against Appellee do not fall within the scope of waiver of governmental immunity. 2. The trial court did not en in granting Nueces County's Plea to the Jurisdiction because the negligence allegedly committed by Appellee does not fall within the specific scope of waiver of immunity provided by the Texas Tort Claims Act. 3. The trial court did not en in granting Nueces County's Plea to the Jurisdiction because the intentional tort allegedly committed by Appellee does not fall within the specific scope of waiver of immunity provided by the Texas Tort Claims Act. 4. The trial court did not err in granting Nueces County's Plea to the Jurisdiction because there is no proximate causation between the acts and omissions allegedly committed by Appellee and the Appellant's alleged injury and therefore Appellant's claims do not fall within the specific scope of waiver of immunity provided by the Texas Tort Claims Act.

10STATEMENT OF FACTS

Appellee is dissatisfied with Appellant's statement of facts because it includes pages of alleged facts and allegations not supported by record references, not pertinent to the proper issue or point presented on appeal, and because it urges arguments concerning the merits of Appellant's cause of action. Tex. R. App. P. 38.1(g). Accordingly, Appellee denies all of the unsupported factual allegations, except those shown by the record. Appellee offers this statement of relevant facts for purposes of this appeal pursuant to Tex. R. App. P. 38.2(a)(1)(B): I. Statement of Procedural History On November 25, 2013, Mr. Wilkins filed his Original Petition in Cause No. 2013-DCV-5868-D, James Wilkins v. Nueces County, in the 105th Judicial District Court of Nueces County, Texas. [CR. 22-26]. The gravamen of Wilkin's petition is that "the County of Nueces is liable for allowing myself to go without a mattress, sheet, and blanket for the 10 (1, 3, 3, and 3) days I was made to wait in the Nueces County holding cells." [CR. 22]. On January 6, 2014, Defendant removed this case to federal court based on federal question jurisdiction under the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's guarantees of procedural and substantive due process. [CR. 38-40]. On June 19, 2014, the United States District Court for the Southern District of Texas, Corpus Christi Division, dismissed all of Plaintiffs federal constitutional and statutory

11claims with prejudice and remanded Plaintiff's remaining claims to the 105 thJudicial

District Court of Nueces County, Texas. [CR. 102-107]. On July 9, 2014, Defendant filed seventeen special exceptions to Plaintiff's Original Petition [CR. 114-125] and on August 4, 2014, the Court entered an order sustaining all seventeen of Defendant's special exceptions and ordered Plaintiff to amend his Original Petition by August 14, 2014. [CR. 139-140]. On August 11, 2014, Plaintiff filed Plaint?ff's Amended Pleadings that alleges causes of action against Defendant for negligence, gross negligence, forgery, and code violations. [CR. 146-153]. On September 14, 2014, Plaintiff filed Plaint jff's Second Amended Pleading superseding all of Plaintiffs prior pleadings and alleging, in singular, negligent misrepresentation against Defendant. [CR. 184-185]. Nueces County filed its Plea to the Jurisdiction on August 29, 2014. [CR. 173-181]. Hearing on that motion was held on September 15, 2014, [RR. 1-12], at which time the court dismissed the matter with prejudice for lack of subject matter jurisdiction and issued a final order disposing of all claims against Defendant. [CR. 1931. H. Underlying Facts (Rebuttal) Mr. Wilkins alleges that Nueces County, Texas failed to provide him a mattress, sheet, and a blanket for a total of 10 days on four separate instances during his five month period of incarceration at the Nueces County jail and then, after Wilkins complained, provided him with falsified information allegedly to cover up its

12infractions of Texas Commission on Jail Standards policies and rules. Wilkins also

alleges that Nueces County kept him detained in a holding cell exceeding 48 hours, in violation of Texas Commission on Jail Standards policies and rules. Nueces County denies each and every, all and singular, allegation of Mr. Wilkins. [CR. 109- 111]. All incoming prisoners to Nueces County jail are secured into the second floor holding cells pending completion of the intake process. [CR. 216]. Mr. Wilkins was housed within 21 hours of arriving at the Nueces County jail. [CR. 216]. STANDARDS OF REVIEW I. Plea to the Jurisdiction Because the question of subject matter jurisdiction is a question of law, the trial court's ruling on a plea to the jurisdiction is reviewed under a de novo standard of review. TRBT Corpus, Inc. v. Financial Center, 9 S.W.3d 316, 320 (Tex. App.— Houston [14thDist.] 1999, pet. denied); see also Bland I.S.D. v. Blue, 34 S.W.3d 547, 551-555 (Tex. 2000). SUMMARY OF THE ARGUMENT The trial court did not err in granting Nueces County's Plea to the Jurisdiction as the allegations against Appellee do not fall within the scope of waiver of governmental immunity. Nueces County's governmental immunity is presumed and neither Appellant's pleadings nor the evidence on record rebut this presumption. Mr.

13Wilkins alleges that Nueces County, Texas failed to provide him bedding and linens

for a limited period of time during his incarceration at the Nueces County jail and that upon his complaint, Wilkins was provided with falsified information allegedly to cover up Appellant's infractions of the Texas Commission on Jail Standards ("TCJS") policies and rules. Appellant also alleges that Appellee detained him in a holding cell for longer than 48 hours, exceeding ThiS's policies and rules. Albeit, the Texas Tort Claims Act ("TTCA") provides limited waiver of governmental immunity from suit, Appellant failed to meet his burden of affirmatively showing the trial court has subject mailer jurisdiction. Appellant did not plead nor does the evidence on record show that Appellee caused Appellant to sustain personal injury as a result of the operation or use of a motor-driven vehicle. Neither does Appellant affirmatively show that Appellee proximately caused him personal injury by a condition or use of tangible personal or real property. Texas common law has long held that 

### non-use of property does not fall under the waiver provisions of the Texas Tort Claims Act. Moreover, the TTCA does not waive governmental immunity from suit for intentional torts. Notwithstanding the foregoing, Appellant's alleged personal injury is too remote and speculative to opine that it proximately resulted from Appellee's alleged omissions and acts. In regards to Appellant's allegation of being detained in a holding cell beyond 48 hours, Appellant does not plead nor does the evidence on record show that the

14holding cell constitutes either personal or real property. Appellant fails to

affirmatively show a proximate cause between the detainment and his alleged injury. Finally, in regards to Appellant's allegation of negligent misrepresentation, fraud, and forgery involving the information he was provided by Appellee, the Legislature does not waive governmental immunity for negligence involving use, misuse, or non-use of information—and as discussed below, the TTCA does not waive immunity for intentional torts. Texas common law has also held that information is not personal property, even if it is reduced to writing. Thus, Appellant failed to affirmatively show any viable causes of action against Appellee and the trial court did not err in granting Nueces County's Flea to the Jurisdiction. Appellee respectfully prays that this Court dismiss this appeal, uphold the district court's grant of plea to jurisdiction, dismiss this action with prejudice, and tax costs against Appellant. ARGUMENT I. Plea to the Jurisdiction Pursuant to Governmental Immunity from Suit A. Preliminary Matter--Appellant waived all issues on appeal as a result of procedural irregularities and amended pleading As a preliminary matter, pro se litigants are held to the same standards as attorneys and shall comply with the Texas Rules of Appellate Procedure ("TRAPs"). Although appellate courts construe pro se filings liberally, the courts
cannot excuse pro se litigants from complying with the TRAPs because doing so
1kmight give pro se litigants an unfair procedural advantage. Wheeler v. Green, 157

S.W.3d 439, 444 (Tex.2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184- 85 (Tex. 1978). Appellate courts generally rule that inadequately briefed issues are waived. See TRAP 38.1(i); see e.g. Hernandez v. Hernandez, 318 S.W.3d 464, 466 (Tex.App.—El Paso 2010, no pet.) (CA found that appellant waived all issues by not presenting argument, authority or cites to record). In addition, an amended pleading supersedes the pleading it amends, Kirk v. Garza, 875 S.W.2d 24, 24 (Tex.App.—Houston [1st Dist.] 1994, writ denied), and makes the superseded pleadings moot. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). The Appellee argues that the Appellant waived all issues presented in this appeal because although Appellant's brief includes legal authorities, it does not discuss them or apply them to the facts of this case. TRAP 38.1(i); see Inpetco, Inc. v. Texas Am. Bank/Houston NA., 722 S.W.2d 721 (Tex. App.—Houston [14th Dist.] 1986, writ refused). Appellee also argues that Appellant's only appealable issue involves his "negligent misrepresentation" cause of action against Appellee as Appellant's second and final amended pleading only includes this single cause of action against Appellee. (CR. 184-185). Stated another way, Appellant's second and final amended pleading supersedes all of Appellant's previous causes of action and makes those actions moot and non-appealable. (CR. 184-185).

16Appellee prays for the Court to dismiss all issues presented as a result of both

Appellant's procedural irregularities and Appellant's amended pleading. Notwithstanding Appellee's request to the Court, Appellee addresses the issues posited by Appellant in their entirety. B. Texas Tort Claims Act CPRC §101.021 A plaintiff who sues a political subdivision under state law must establish a waiver of sovereign or governmental immunity by (1) alleging legislative consent to sue and (2) pleading facts that fall within the scope of legislative consent. Tex. Dep't of Health v. Rocha, 102 S.W.3d 348, 353 (Tex.App.—Corpus Christi, 2002, no pet.). Immunity from suit defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject-matter jurisdiction are questions of law. Id. at 226; Kaufman County v. Leggett, 396 S.W.3d 24, 28 (Tex.App.—Dallas 2012, pet. denied). A governmental unit's jurisdictional plea can be based on the pleadings or on the evidence. Id. The Texas Tort Claims Act ("TTCA") provides a limited waiver of the government's immunity to the following set of tort claims: (1) Property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

WA(A) the property damage, personal injury, or death arises from the operation

or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and, (2) personal injury and 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 (West 2015). It should be noted that the mere invocation of the Texas Tort Claims Act in a petition does not waive sovereign immunity and confer jurisdiction on the trial
court. 

### Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 

### 583, 587 (Tex. 2001). The claim raised must fall within the specific scope of the waiver of immunity provided by the Texas Tort Claims Act. 

### Id. A court shall review the petition to ascertain the nature of the claim raised, examine the TTCA to determine the scope of waiver of sovereign immunity relevant to the claim, and finally consider the facts of the claim to decide whether it comes within the scope so as to invoke jurisdiction in the trial court. 

### Id. C. Requisite Waiver of Immunity Elements under CPRC §101.021(1)(A)(B) 

### i. "Arises from" Motor-Driven Equipment & Vehicles Pursuant with the Legislature's preference for a limited immunity waiver, the Texas judiciary is to strictly construe § 101.021's vehicle-use requirement. 

### Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex.

0

### 2015), reh'g denied (Mar. 13, 2015). The Supreme Court of Texas has defined the

standard as a "nexus between the operation or use of the motor driven vehicle or equipment and a plaintiff's injuries." Id. at 928. ii. Motor-Driven Vehicle or Equipment 

### "Motor-driven' means, quite simply, driven by a motor." Texas Nat. Res. Conserv. Comm 'n v. White, 46 S.W.3d 864, 868 (Tex.2001). iii. Operation or Use 

### The Supreme Court of Texas has consistently defined "use" to mean "to put or bring into action or service; to employ for or apply to a given purpose." San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.2004). "Therefore, to invoke the Tort Claims Act's waiver of immunity, [Plaintiffs] injury must have been caused by the [Defendant's] actual use of the [motor-driven vehicle], not the [Defendant's] failure to use it." White, 46 S.W.3d at 869. "[The Supreme Court of Texas] has never held that non-use of property can support a claim under the Texas Tort Claims Act." Id.; see e.g. Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg By & Through Lindburg, 766 S.W.2d 208 (Tex. 1989); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998); Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996); Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994).

19D. Requisite Waiver of Immunity Elements under CPRC §101.021(2)

L Tangible Personal Property The Supreme Court of Texas has long held "that information is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities." 

### Texas Dept of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); 

### University of Tex. Med Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994). In 

### Dallas v. Harper, 913 S.W.2d 207 (Tex. 1995), the Texas Supreme Court concluded that simply reducing "information to writing on paper does not make the information 'tangible personal property." 

### Id citing 

### Petta, 44 S.W.3d at 580. "Thus, while instructional manuals can be seen and touched, the Legislature has not waived immunity for negligence involving use, misuse, or non-use of the information they contain." 

### Id. at 581. In fact, "it is technically possible to characterize any imaginable action as a case involving use of tangible personalty. Each of us deals daily with the tangible components of this material world. But creative pleading cannot replace the rule of immunity with its exception." 

### Lowe v. Harris County Hosp. Dist., 809 S.W.2d 502, 

### 504 (Tex. App.—Houston [14th Dist.] 1989, no writ). ii Caused By "For this reason the statute requires that the injury be 'caused by a condition or use' of tangible personalty, and the courts have held accordingly." 

### Id. citing

ONRussell v. Texas Department of Human Resources, 746 

### S.W.2d 510, 513

(Tex.App.—Texarkana 1988, writ denied). Indeed, "the plaintiff must allege that the property's condition or use proximately caused the personal injury.

. . ." Wise Reg'l Health Sys. v. Brittain, 

### 268 S.W.3d 799, 807-08 (Tex.App.—Fort Worth 2008, no pet.). "Property does not cause injury if it does no more than furnish the condition that makes the injury possible." Dallas County Mental Health & Mental Retardation v. Bossley, 

### 968 S.W.2d 339, 343 (Tex. 1998); Union Pump Co. v. Allbritton, 

### 898 S.W.3d 773, 776 (Tex. 1995). X. Use of Property 

### Non-use of tangible personal property does not fall under the waiver provisions of the Texas Tort Claims Act. Clark, 

### 923 S.W.2d at 584; City of N. Richland Hills v. Friend, 

### 370 S.W.3d 369, 372 (Tex. 2012); Univ. of Tex. M.D. Anderson Ctr. v. King, 

### 417 S.W.3d 1, 4 (Tex.App.—Houston [14th Dist.] 2013, no pet.). In addition, the TTCA does not waive a defendant's immunity in regards to intentional torts. Tex. Civ. Prac. & Rem. Code Aim. § 

### 101.057 (West 2015). Finally, it is inappropriate to allow a plaintiff to bootstrap a failure to act case into a misuse case against the Defendant, a matter as to which, Texas retains sovereign immunity. Estate of Banks v. Chambers Mem'l Hosp. Auxiliary, Inc., 

### 865 F.2d 696 (5th Cir. 1989).

21iv. Were it a Private Person



### "In evaluating [the] contentions [of the defendant] it is important to remember that the Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist. Thus, unless [the plaintiff himself] would have a claim

... 

### under common law against a private defendant, [the Court] need not reach the question of whether [said claim] is a "personal injury" for which the Legislature has waived

. . . 

### sovereign immunity." City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Under this reasoning, it is of importance to mention that the Texas Commission on Jail Standards does not provide for private causes of action for infractions to its policies and rules. 37 TEX. ADMIN. CODE §§ 

### 251-301 (West 2015). F. Application to Issues Presented L Subject Matter Jurisdiction a. CPRC.S 101.021 (1) (A) (B) 

### In applying Texas statutory and common law to the pleadings and evidence on record in this matter, neither the Appellant's pleadings nor the evidence on record establish a waiver of governmental immunity under CPRC § 

### 101.021(1)(A)(B). Tex. Civ. Prac. & Rem. Code Ann. § 

### 101.021(1)(A)(B) (West 2015). Indeed, Appellant did not plead nor does the evidence show Appellant's injury was caused by Appellee's actual use of a motor-driven vehicle. Therefore,

PANAppellant failed to allege facts affirmatively showing that the trial court has

subject matter jurisdiction and thus the trial court did not err in granting Appellee's plea to jurisdiction with respect to CPRC § 101 .021(1)(A)(B).

b. CFRCt101.021(2) In regards to CPRC § 101.021(2), Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2015), the first issue to be addressed is the failure to timely provide bedding and linens to Appellant while he was incarcerated in Nueces County Jail. The second issue to be addressed is the failure to remove Appellant from a holding cell within 48 hours pursuant to rules and policies of the Texas Commission on Jail Standards. The third issue to be addressed is the failure to provide Appellant accurate information regarding the rules and policies of the Texas Commission on Jail Standards. The final issue to be addressed is Appellant's personal injury. Each issue is addressed below, respectively. ii. Non-compliance to Rules of Texas Commission on Jail Standards a. Rule 277.8 Bedding & Linens The failure to provide bedding and linens does not waive governmental immunity for a number of reasons. First, Texas common law has long held that non-use of tangible personal property, here the bedding and linens, does not fall under the waiver provisions of the Texas Tort Claims Act. Clark, 923 S.W.2d at 584; Friend, 370 S.W.3d at 372; King, 417 S.W.3d at 4. It would be a flagrant

23deviation from case law precedent if it were otherwise. Indeed, broadening the

scope of CPRC § 101.021(2) to include non-use of tangible personal property would be tantamount to abolishing governmental immunity altogether. See White, 46 S.W.3d at 868. Secondly, Appellant's alleged personal injury from the non-use of bedding and linens is too remote and speculative to opine that it proximately caused Appellant's personal injury. "Property does not cause injury if it does no more than ftwnish the condition that makes the injury possible." Bossley, 968 S.W.2d at 343; Allbritton, 898 S.W.3d at 776. It is just as reasonably possible that Appellant's mental anguish, if any, proximately resulted from his incarceration at the County Jail and the substantial disruption it had on the Appellant's daily life routine. Finally, governmental immunity cannot be waived for the failure to provide bedding and linens that are required by the rules and policies of the Texas Commission on Jail Standards ("TCJS") because the TJCS does not provide for private causes of action for infractions to such policies. Pursuant to 37 TEX. ADMIN. CODE § 297.9, the commission is the entity that institutes actions, "in its own name", to enforce or enjoin the violations of its orders, rules, or procedures. (West 2015). Thus, as the Appellant does not have a claim for himself against the Appellee, "[the Court] need not reach the question of whether [said claim] is a "personal injury . . . ." as governmental immunity is not waived. Likes, 962 S.W.2d 489 at 494. Even assuming arguendo that Appellee were a private person,

24the result involving Appellee's immunity from suit, in this fact situation, remains

the same. This is because the Supreme Court of Texas holds that there is no general duty not to negligently inflict mental anguish. 

### Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex. 1993). In so rejecting, the Supreme Court of Texas stated that "[t]ort law cannot and should not attempt to provide redress for every instance of rude, insensitive or distasteful behavior, even though it may result in hurt feelings, embarrassment, or even humiliation." 

### Id. at 601-02. Recognizing the need for an appropriate balance, Texas common law exclusively designed recovery for mental anguish in only those few types of cases involving injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result, such as cases involving wrongful death. 

### Id.; see Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985). Thus, the trial court did not err in granting Appellee's plea to the jurisdiction with respect to Rule 277.8 Bedding and Linens of the Texas Commission on Jail Standards.

b. Rule 259.138 Holding Cells Appellee incorporates the foregoing paragraph to the extent it is applicable herein. Appellant did not plead nor does the evidence on record show that the holding cell constitutes either personal or real property. In either case, "property does not cause injury if it does no more than furnish the condition that makes the injury possible." 

### Bossley, 968 S.W.2d at 343; 

### Alibritton, 898 S.W.3d at 776.

25Here, Appellant establishes no proximate causation between being detained in a

holding cell and his alleged personal injury. Moreover, the TTCA does not waive Appellant's immunity in regards to intentional torts, Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2015), and assuming arguendo, that confinement to the holding cell was intentional, governmental immunity is nevertheless retained. Finally, as previously stated, the TICS does not provide for private causes of action for infractions to its policies. Thus, given the foregoing analysis, the trial court did not err in granting Appellee' s plea to the jurisdiction with respect to Rule 259.138 Holding Cells of the Texas Commission on Jail Standards. iii. Alleged Negligent Misrepresentation & Fraud/Forgery In regards to Appellant's allegation of negligent misrepresentation, fraud, and forgery as a result of Appellee's failure to provide Appellate accurate information regarding the rules and policies of the Texas Commission on Jail Standards, again there are a number of reasons why governmental immunity is not waived. First and foremost, as held by Texas common law, "information is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities." Petta, 44 S.W.3d at 580; York, 871 S.W.2d at 179. Even reducing "information to writing on paper does not make the information 'tangible personal property." Id. citing Petta, 44 S.W.3d at 580. Moreover, the Legislature has not waived immunity for negligence involving use,

26misuse, or non-use of information. Id. at 581. This being designed exclusively as

the Texas statutory and common law, the "information" communicated to Appellee unmistakably does not constitute tangible personal property under the TTCA to waive immunity, even if the information was reduced to writing. In addition, Appellant's alleged negligent misuse of the "information" still would not invoke subject jurisdiction to the trial court, as held by Texas common law. Appellant also alleged fraud and forgery in regards to Appellee's failure to provide accurate information regarding the rules and polices of the Texas Commission on Jail Standards. Both fraud and forgery are intentional torts. See Walton v. Tex. Dep't of Crim. Justice, No. 13-07-00656-CV, 2008 WL 3868113 at

* 1 (Tex.App.—Corpus Christi Aug. 21, 2008, pet. denied) ("appellant filed a lawsuit against appellees alleging a number of intentional torts and the court concluded that appellant's claims fall within the intentional tort exception to the TTCA. 

### . . .). As noted, the TTCA does not waive Appellee's immunity in regards to intentional torts. Tex. Civ. Prac. & Rem. Code Ann. 

### § 101.057 (West 2015). Therefore, Appellant's intentional tort causes of action against Appellee do not waive immunity and the trial court did not err in granting Appellee's plea to jurisdiction.

27

### iv. Personal Injury

As thoroughly discussed in the foregoing paragraphs, personal injury alone does not waive governmental immunity from suit. The Supreme Court has long recognized that "it is the Legislature's sole province to waive or abrogate immunity." 

### See Fed Sign. v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997); 

### see also Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980); 

### Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex. 1970); 

### Gr i 

### ffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960); 

### W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958); 

### Tex. Highway Dep't v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71(1949); 

### Hosner v. DeYoung, 1 Tex. 764, 769 (1847). As described, the TTCA prescribes the manner in which governmental immunity from suit is waived wherein a plaintiff can make a viable claim for personal injuries. The Appellant herein, however, has failed to establish any waiver of immunity from suit; and thus, the Court need not reach the question regarding personal injury. Indeed, Appellee did not cause personal injury to Appellant as a result of the operation or use of a motor-driven vehicle. Neither did Appellee cause Appellate personal injury by a condition or use of tangible personal or real property. As previously noted, the non-use of tangible personal property does not fall under the waiver provisions of the Texas Tort Claims Act to allow a plaintiff to make a claim for personal injuries. Finally, a claimant, here the

rA*JAppellant, may not recover mental anguish damages in connection with negligent

misrepresentation, pursuant to Texas common law. 

### Federal Land Bank Assoc. v. Sloane, 825 S.W.2d 439 (Tex. 1991). Thus, Appellant's alleged personal injury is non-compensable under Texas law as Appellant failed to affirmatively show waiver of governmental immunity from suit. II. Conclusion Concerning Plea to the Jurisdiction Because Appellant cannot demonstrate a waiver of governmental immunity, Appellant's causes of action against Appellee were properly dismissed with prejudice by the trial court in its grant of Appellee's 

### Plea to the Jurisdiction.

WHEREFORE, Appellee, Nueces County, prays the Court dismiss this appeal, uphold the district court's grant of plea to jurisdiction and dismissal of this action with prejudice, and tax costs against Appellant.

29Respectfully submitted, LAURA GARZA JIMENEZ, NTJECES COUNTY ATTORNEY By:/s/ Juan J. Maldonado, III Jenny Cron Assistant County Attorney State Bar No. 00796237 Juan J. Maldonado, III Assistant County Attorney State Bar No. 240834436 901 Leopard, Room 207 Corpus Christi, TX 78401 (361) 888-0391 (361) 888-0577 facsimile jenny.boydnuecesco.com juan.ma1donadonuecesco.com ATTORNEYS FOR APPELLEE, NUECES COUNTY, TEXAS

30CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word 2010 and contains 4,006 words, as determined by the computer software's word count function, excluding the sections of the document listed in Texas Rules of Appellate Procedure 9.4(i)(1). Is! Juan J. Maldonado, III JUAN J. MALDONADO,III

31

### CERTIFICATE OF SERVICE

I IThREBY CERTIFY that a true and correct copy of this document was served on: VIA CMRRR 7014 1200 0001 0754 0659 

### Mr. James Wilkins TDJC: 01970009 SD: 10123934 Texas Department of Criminal Justice Fabian Dale Dominguez State Jail 6535 

### Cagnon Road San Antonio, Texas, 78252-2202 on this the 6th

day of November, 2015.Is! 

### Juan J. Maldonado, III

JUAN J. MALDONADO, Ill

32

### CAUSE NO. 13-14-00570-CV JAMES WILKINS Appellant
V. 

### NUECES COUNTY, TEXAS,

Appellee

APPELLEE' S APPENDIX

LIST OF DOCUMENTS 1.Trial Court's Appealable order dated 9/15/14 Dismissal for Lack of Subject Matter Jurisdiction............................................Tab A 2. Rules relied on 37 TEX. ADMIN. CODE § 

### 259.138, Holding Cells (West 2015) ..................Tab B 37 TEX. ADMIN. CODE § 

### 277.8, Bedding and Linens (West 2015) ............Tab B 37 TEX. ADMIN. CODE § 

### 297.9, Other Conirn'n Remedies (West 2015)

... 

### Tab B 2013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS) .......Tab B 2014 TX REG TEXT 339463 (NS), 2014 TX REG TEXT 339463 (NS) .......Tab B

33Signed on 

# q/11

# /

PATSY PEi-IEZ, DISTRICT CLERK I NUECES COUNTY CAUSE NO. 2013-DCY-5868-D JAMES WILKINS

NUECES COUNTY, TEXAS § IN THE DISTRICT COURT § § 105 "

JUDICIAL DISTRICT § § NUECES COUNTY, TEXAS
ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION
ON THIS DAY came on to be heard Defendant Flea to the Jurisdiction. It appears to the Court that the plea to the jurisdiction should be sustained because this Court lacks subject matter jurisdiction. Plaintiff's action against Defendant Nueces County, Texas, is hereby dismissed for lack of subject matter jurisdiction. This is a final order disposing of all claims against Defendant Nueces County, Texas.§ 259138. Holding Cells, 37 TX ADC § 259 . 138

37 TAC § 259.138 Tex. Admin. Code tit. 37, § 259.138 § 259.138. Holding Cells

Currentness

(a) One or more holding cells shall be provided to hold inmates pending intake, processing, release, or other reason for temporary holding. Inmates shall not be held for more than 48 hours and the cell shall include the following features.

(1) Seating. A stationary bench or benches abutting the walls shall be provided. Benches shall be 17" to 19" above the finished floor and not less than 12" wide. Seating shall be sufficient to provide not less than 24 linear inches per inmate at cell capacity.

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories, and floor drains. The floor shall be properly pitched to drains.

(3) Cell Size. The size of the cell shall be determined by the anticipated maximum number of inmates to be confined at any one time. Cells shall be constructed to house from one to 24 inmates and shall contain not less than 40 square feet of floor space for the first inmate and 18 square feet of floor space for each additional inmate to be confined.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to materially reduce noise. V*[v;?Next © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 259.138. Holding Cells, 37 TX ADC § 259.138

(b) Remote Holding Cells. Holding cells that are separate from the facility and utilized for direct court holding, processing, or for inmates awaiting transportation. Inmates shall not be held for more than 4 hours and the cell shall include the following features.

(1) Seating. A stationary bench or benches abutting the walls shall be provided. Benches shall be 17" to 19" above the finished floor, and not less than 12" wide. Seating shall be sufficient to provide not less than 18 linear inches per inmate at cell capacity.

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories capable of providing drinking water, and floor drains. The floor shall be properly pitched to drains.

(3) Cell Size. The size of the cell shall be determined by the anticipated maximum number of inmates to be confined at any one time. Cells shall be constructed to house from one to 24 inmates and the capacity shall be determined by the amount of seating provided and posted at the exterior of the cell.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to materially reduce noise.

(6) Smoke Detection. Smoke detection capability shall be provided. The alarm shall annunciate at a staffed location in close proximity to the cell. Additional life safety items shall be compatible with the remainder of the building.

(7) Audible Communication. Audible communications shall be provided.

(c) Remote Holding Cells. Holding cells that are separate from the facility and utilized for direct court holding, processing, or for inmates awaiting transportation. Inmates shall not be held for more than 8 hours and the cell shall include the following features. 4N4ext © 2015 Thomson Reuters. No c(aim to origria! U . S. Government Works.§ 259.138. Holding Cells, 37 TX ADC § 259.138

(1) Seating. A stationary bench or benches abutting the walls shall be provided. Benches shall be 17" to 19" above the finished floor, and not less than 12" wide. Seating shall be sufficient to provide not less than 24 linear inches per inmate at cell capacity.

(2) Plumbing. Cells shall be provided with adequate toilets, lavatories capable of providing drinking water, and floor drains. The floor shall be properly pitched to drains.

(3) Cell Size. The size of the cell shall be determined by the anticipated maximum number of inmates to be confined at any one time. Cells shall be constructed to house from one to 24 inmates and shall contain not less than 40 square feet of floor space for the first inmate and 18 square feet of floor space for each additional inmate to be confined.

(4) Surfaces. Floor, wall, and ceiling material shall be durable and easily cleaned.

(5) Supervision. The cell shall be located and constructed to facilitate supervision of the cell area and to materially reduce noise.

(6) Smoke Detection. Smoke detection capability shall be provided. The alarm shall annunciate at a staffed location in close proximity to the cell. Additional life safety items shall be compatible with the remainder of the building.

(7) Audible Communication. Audible communications shall be provided.

Credits Source: The provisions of this § 259.138 adopted to be effective December 12, 1994, 19 TexReg 9376; amended to be effective August 16, 1996, 21 TexReg 7565; amended to be effective February 4, 1999, 24 TexReg 591; amended to be effective May 3, 2000, 25 TexReg 3791; amended to be effective October 16, 2007, 32 TexReg 7267. Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015
k&1i4NeYt © 2015 Thomson Reuters. No claim to original U . S. Government Works.§ 259.138. Holding Cells, 37 TX ADC § 259.138

TAC 5259.138.37 TX ADC 5259.138 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

WI.vNext © 2015 Thomson Routers. No claim to original U.S. Government Works. 4§ 277.8. Bedding and Linens, 37 TX ADC § 277.8

Corrections on on Jail Standards

, Personni Hygiene and Bedding

37TAC § 277.8 Tex. Admin. Code tit. 37, § 277.8 § 277.8. Bedding and Linens

Currentness

A standard issue of bedding and linens to each inmate to be placed in housing shall include, but shall not be limited to, the following clean, safe, and serviceable items:

(I) one mattress;

(2) one sheet or mattress cover;

(3) one towel;

(4) one blanket, or more depending upon climatic conditions. Inmates detained in holding and/or detoxification cells maybe provided with the above items.

Credits Source: The provisions of this §277.8 adopted to be effective December 20, 1994, 19 TexReg 9652; amended to be effective May 3, 1995, 20 TexReg 2867; amended to be effective March 31, 2014, 39 TexReg 2296. Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015 37 TAC § 277.8, 37 TX ADC § 277.8 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

r7iTNCt © 2015 Thomson Reuters. No claim to original U.S. Government Works, 1§ 2979. Other Commission Remedies, 37 TX ADC § 297.9

37TAC § 297.9 Tex. Admin. Code tit. 37, § 297.9 § 297.9. Other Commission Remedies

Currentness

In addition to or in lieu of the remedial order remedies described in § 297.8 of this title (relating to Remedial Order by Commission) the commission may institute an action in its own name to enforce or enjoin the violation of its orders, rules or procedures, or the Local Government Code, Chapter 351. An action brought pursuant to this section is in addition to any other action, proceeding or remedy provided by law, and may be brought in a district court of Travis County, Texas. A suit brought under this section shall be given preferential setting and shall be tried by the Court, without a jury, unless the responsible officials request a jury, in accordance with the Local Government Code, Chapter 351. The commission shall be represented by the attorney general in such actions.

Credits Source: The provisions of this § 297.9 adopted to be effective December 27, 1994, 19 TexReg 9882. Current through 40 Tex.Reg. No. 7734, dated October 30, 2015, as effective on or before October 30, 2015 37 TAC S 297.9. 37 TX ADC S 297.9 End of Document © 2015 Thomson Reuters. No clams to original U.S. (Jovcrnmeol Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS)



### NETECAN

2013 TX KEG TEXT 339463 (NS) Texas Regulation Text

- Netscan

37 TAC 277.8 Proposed October 04, 2013 Public Safety and Corrections Bedding and Linens
The Texas Commission on Jail Standards proposes an amendment to s.277.8, concerning Bedding and Linens. The purpose of the proposed amendment is to give sheriffs discretion in providing bedding and linens to persons in holding/detoxification cells. 37 TAC 277.8
37 TAC 277.8

TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART 9. TEXAS COMMISSION ON JAIL STANDARDS CHAPTER 277. CLOTHING, PERSONAL HYGIENE AND BEDDING 37 TAC §277.8 The Texas Commission on Jail Standards proposes an amendment to §277.8, concerning Bedding and Linens. The purpose of the proposed amendment is to give sheriffs discretion in providing bedding and linens to persons in holding/detoxification cells. Brandon S. Wood, Executive Director, has determined that for the first five year period the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended section. Mr. Wood has also determined that for each year of the first five years the amendment is in effect the public benefits anticipated as a result of enforcing the amendment as proposed will be clarification of existing standards. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment as proposed. Comments on the proposal may be submitted to Diana Spiller, P.O. Box 12985, Austin, Texas 78711; (512) 463-5505. The amendment is proposed under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. Et-Next © 2015 Thomson Reuters. No claim to original U . S. Government Works2013 TX REG TEXT 339463 (NS), 2013 TX REG TEXT 339463 (NS)

The statutes that are affected by this amendment are Local Government Code, Chapter 351, §351.002 and §351.015. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on September 18, 2013. TRD-2013 04077 Brandon S. Wood Executive Director Texas Commission on Jail Standards Earliest possible date of adoption: November 3, 2013 For further information, please call: (512) 463-8236

End of Document Z2015 Thomson Reuters. No claim to original U.S. Government Works. 

## II*ISfN

INexr © 2015 Thomson Reuters. No claim to original US. Government Works. 22014 TX REG TEXT 339463 (NS), 2014 Tx REG TEXT 339463 (NS)



### Fl*$1*1 I

2014 TX REG TEXT 339463 (NS) Texas Regulation Text

- Netsean 37 TAC 277.8 Adopted March 28, 2014 Effective: March 31, 2014 Public Safety and Corrections Bedding and Linens
The Texas Commission on Jail Standards (TCJS) adopts an amendment to s.277.8, concerning Bedding and Linens, with changes to the proposed text as published in the October 4, 2013, issue of the Texas Register (38 TexReg 6885). 37 TAC 277.8
37 TAC 277.8

TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART 9. TEXAS COMMISSION ON JAIL STANDARDS CHAPTER 277. CLOTHING, PERSONAL HYGIENE AND BEDDING 37 TAC §277.8 The Texas Commission on Jail Standards (TCJS) adopts an amendment to §277.8, concerning Bedding and Linens, with changes to the proposed text as published in the October 4, 2013, issue of the Texas Register (38 TexReg 6885). The purpose of the proposed addition is to clarify the issuance of bedding and linens to inmates. Multiple comments were received from representatives of the Texas Jail Project opposing the proposed amendment. The commenters opposed giving sheriff or his or her designee the discretion to provide bedding and linen items to inmates detained in holding or in detoxification cells. TCJS chairperson appointed a committee to study the standard. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. W.LkNext 02015 Thomson Reuters. No claim to original US. Government Works2014 TX REG TEXT 339463 (NS), 2014 TX REG TEXT 339463 (NS)

Filed with the Office of the Secretary of State on March 11, 2014. TRD-201401125 Brandon S. Wood Executive Director Texas Commission on Jail Standards Effective date: March 31, 2014 Proposal publication date: October 4, 2013 For further information, please call: (512) 463-8236

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.


### I1*fIMAWl

VPJkNext © 2015 Thomson Reuters. No Claim to original U.S. Government Works. 2