1 John T. Boyd, Chief Justice (Re t.), Sev enth Co urt of A ppe als, sitting by as sign me nt. Tex. Gov’ t Code

An n. §7 5.00 2(a)(1 ) (Ve rnon Su pp. 2 004 ). NO. 07-03-0232-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E FEBRUARY 11, 2004

______________________________

RICKY STARKS, Appellant
v. TEXAS D EPARTME NT OF CR IMINAL JU STICE, Appellee

_________________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUNTY; NO. 89,630-D; HON. DON EMERSON, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 RickyStarks (Starks) appeals from a final judgment wherein the trial court granted the plea to the jurisd iction of the cour t fi led by the Texas Department of Criminal Justice (TDCJ). The latter

argued that the suit should be dismissed due to the want of jurisdiction. Furthermore, jurisdiction was non-existent because Starks could not “show that hisinjury
was caused b y a use of property under th e TexasTort Cla ims Act.” Starks attacks the trial2

court’s judgment via six issues. Through each, he attempts to ill ustra te that he actually alleged a claim within t he scopeof the To rt Claims Act. We r

everse th e judgmen t. Authority It is beyond dispute that sta te governmental agencies enjoy sov ereign immunity fro m suit. Nevertheless, our legislat ure has said that they could be held l iable for damage, injury, or death caused by a condition or use of tangible personalty “if the governmental unit woul d, were it aprivate person, b e liabl e to the c laimant a ccording to Texa s Law.” T EX
. C IV
. P RA C
. & R EM
. C ODE A NN . §101.02 1(1)(A) & (2); Rule v. City of Lubbock, 68 S.W.3d 853, 857 (Tex . App.–Am a rill o 2002, no pet). Thus, to avoid their immunity, the complainant, through his pleadings, must allege facts illustrating a viable cause of action involving damage, injury or death caused by a condition o r use of tangible personalty. Rule
v. City of Lubbock, 68 S.W.3d at 857. In other words, for one to enjoy the window opened bythe Tort Claims Act, they must ple ad facts which, if accepted as true, satisfy the elementsof the To rt Claims Act. Id. We caution , howeve r, that thetrial co urt is no t to assess the merits of the underlying
cause of action when determining if the pleading s mee t the requ isite sta ndard. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 20 00); Rule v. City of Lubbock, 68 S.W.3d at 857. That is, it must not require the co mplainan t to prove the merits of his underlying cause of action. Instead, the petition is normally v ie wed as the source of the information used to assess jurisdiction, though extraneous evidence may be received by the court depending upon the nature of the jurisdictional attack. Id. ; see Texas Dept . Crim. Justice v. Miller

, 51 S.W.3 d 583, 58 7 (Tex. 2 001) (stat ing that “we must ex amine the2 To the extent the TDCJ suggests that j urisdi ction was wanting si nce Starks could notprove causati on, it

is i nvit ing t he court

to do t h at caut ioned ag ainst in Bland . Contending, via a motion t o dismiss or a ple a to th e juri sdicti on of the court , that the suit should be dismissed f or want of j urisdi ction because Starks can not p rove an e lem ent o f his cla im, i. e. causat ion, dif fer s from contendi ng that it should be dis missed since he fai led t o all

ege a cause of

action within the sc ope of the T ort C laim s Ac t. The form er invites the co urt to ass ess the m erits of th e ca se, contrary t o the di rect ive i n Bland , while the latter do es no t. The latter, inst ead, simp ly require s peru sa l of the plea din gs to se e w ha t wa s alle ge d a nd wh eth er th os e a lleg atio ns fit within the A ct. 3 plaintiff’s pleadings to decide whether sovereign i mmunity has bee n wa ived” but also consider the evid ence pres ented). 2 Next, for purposes of

the Tort Claims A

ct, the wo rd “use” me ans “‘to put or bri ng into action or serv ice; to e mploy for or apply to a given purpo se.’” Texas Dept. Crim. Justice
v. Miller , 51 S.W.3 d at 588. And, it is this e lement of the Tort Claims Act which Starks failed to sati sfy given the alle gations in his l ive peti tion, according to the TDCJ . Thus, t o
see if it is correct, we must not only read the petition b ut also do so in a liberal manner since Starks re presents himself. See Giddens v. Brooks , 92 S.W.3d 878 , 880 (Tex. App.–Beaumont2002, pet. denied) (stating that the pleadings of a pro se litigant are to be liberally construe d); Johnson v. M cAdams , 781 S.W.2d 451, 452 (Tex. App.–Houston [1st Dist.] 1989, no

writ) (sta ting that

the “Sup reme Cour

t directs us to see k th e substan ce of
a pro se complaint by reviewing pro se applica tions wi th libera lity and patience”). Applica tion of A uthority Starks sued theTDCJ for compensa tion dueto a skin infection he developed while incarcerated. He alleged, among other things, the follow ing in his live petition:

. . . From [August13, 2001] until nearly the third of [S]eptember was a three week period of time in which plaintiff had to retain possessi on of his sheets with no opportunity to exchange them for clean o nes. Thro ught [sic ] that time the security detention inmates were shaken down[, ] and pla intiff’s sheets were spread across the dirty concrete floor. This o ccurre d on the 27 th of August. This was the further contamination of the sheets where plaintiff still3 Though no e vide nce wa s offere d at the hea ring o n TD CJ ’s plea , Stark s arg ued that the “dirty

concret e fl oor .
. . has spi t on it , f ood part icl es on i t, coff ee spil ls on it , and se wage backup on it where t hey imp rope rly mo p the m . . . .” 4 had to sleep o n the she ets. Duri ng the sh akedown all cle aning su pplies were taken from the i nmates . .

. . So, here is a situation where plai ntiff could not even wash the sheets that he did have. Therefore, plainti ff was req uired to sleep on the dirty she ets after they had been spread across the floor, when sheetswere to be issued on that same Monday. She ets were not given t o any of the security detention inmates. Plaintiff then contracted an infection thatworsened so fast that it had [spread] over the entire right side of his back and ultimate ly over th e whole back area . Said i nfe cti on increased to the stage of sores which bled over the shee ts plain tiff

was force d to conti nue to sleep on

. . . . Reading Starks’ allegations with the “liberali ty an d patience” contemplated in Johnson v. McAdams , we see that he complains of several thi ngs. One involves an omission on the part of

his jail ers, that o mission being th eir fail ure to provide him with clean sheetsfor

several weeks. The other encompasses their act of spreading his sheets on a dirty concretefloor pa rt, which resulted in their furth er contamination, and then requiring thathe slee p on them

. 3 The former may not be actionable since it entails al legations of injury arising from the n on-use of personal ty, i.e. the failure to provide clean sh eets. See Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994) (stating that thenon-use of property, such
as availa ble drugs d uring emergency medical treatment, does not result in the waiver of sovereign immunity). Yet, the same cannot be said of the latter. In contamina ting the sheetsby sprea ding them ac ross a dirty floor and then returning the soiled items for hi m to sleep on, it can be said that the TDCJ employees “put or [brought] into action or service”
or “employ[ed] . . . or appl[ied] to a given purpose” the shee ts that purportedly c aused Starks’ infection. Whether the allegations are trueor whether Starks’ injuries were caused bywhatever filth, if any, attached to the sheets after being place d on the floor is irrelevant5

to our inqu iry. Tho se mattersimplica te the merits of hi s claim, not wheth er h e alleged a cause of action w ithin the scope of

the Texas Tort C laims Ac t. Given our obli gation to co nstrue his petition liberally, we conclude that Starks’ alleged facts illustrate that his injury arose due to a condition or useof tangible personalty. And, because they did, the trial court erred in concludi ng otherwise and, thereby, entering judgmentdenying him recovery. Accordingly, the judgment is reversed, and the cause is remanded to the tri al court.

Brian Quinn Justice