### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00095
- CV

Juan Ramon Atilano, Annette Pricilla Diaz, Erika Nicole Romero as Next Friend of Marissa Danielle Atilano and Julian Andrew Atilano, and as

Represen t ative of the Estate of Juan Dan iel Atilano, Deceased , Appellant s

v. Tom Green County, Texas , Appellee

FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY NO. B150225C , THE HONORABLE BEN WOODWARD , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Juan Daniel Atilano was stopped a nd arrested for driving while intoxicated ( DWI). D uri ng his dete ntion , arrest, and booking into the Tom Green County jail , several officers observed him sweating “profusely ” and asked if he had consumed anything other than alcohol ; he repeatedly denied t h at he had

. A bout forty

- five minutes a fter he was booked , officers noticed that Atilano ’ s physical condition was deterio rating and decided to transport him to the hospital

. When the jail ’s transport van arrived at t he emergency ro om, Atilan o was unre spon s ive and had a very weak pulse. H e died despite hospit al staff perform ing CPR and pla c ing him on a
resp irator , and his death was determined to be the result of a meth amphetamine overdo se
. Atilano ’ s family members Juan Ramon Atilano, Annette Pric illa D iaz , Erika Nicole Romero as Next Friend of Marissa Danielle Atilano and Julian Andrew Atilano, and as2 Representative of the Estate of Juan Daniel Atilano, Deceased , (collectively “ appellant s ” ) filed suit against appellee Tom Green County, Texas, asserting a S ection 1983 claim for violations of Atilano ’ s constitutional r ights. S ee 42 U.S. C

. § 1983 . T he County filed a p lea to t he jurisdi ction , a r guing that appellants had not stated a claim that could be sustained against a governmental entity and attaching sup porting evidence , and t he trial court granted the plea

. 1 We affirm the trial court ’ s order granting the County ’ s plea to the jurisdiction

.
STANDARD OF REVIEW

“ Whether a court has subject matter jurisdiction is a question of law. ” Texas Dep ’ t of Par ks & W ildli fe v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004)

. A plea to the jurisdiction seeks to establish that the trial court lacks jurisdiction to hear a plaintiff ’s claims by challenging the s uf fi ciency of the plaintiff ’ s pleadings alone or by challeng i ng the e xistence of jurisdictional fac ts

. See City of Waco v. Kirwan , 298 S.W.3d 618, 621

- 22 (Tex. 2009)

. We review a trial court ’s decision on a plea to the jurisdiction de novo. Miranda , 133 S.W .3d at 228

. If a plea challenges the existence of juris dic tional facts, courts “ ‘ consid er relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, ’ even where those facts may implicate the merits of the cause of action. ” Kirwan , 298 S.W.3d at 622 (quo ti ng Mirand a , 13 3 S.W.3d at 227 )

. When the jurisdictional facts implicate the merits , t h e manner in which the court an alyzes the evidence “ generally m irrors that of a sum mary ju dgment under Texas Rule of Civil Procedure 166a(c)

. ” Miran da , 133 S.W.3d at 228. “ [ T ] he

1 Appellants also assert ed claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act , see 29 U.S.C. § 794, 42 U.S.C. §§ 12131

- 12134, 12182 ; and the Texas W ron gful Death Act, see Tex. Civ. Prac. & Rem. Code § § 71.004

- .021

. However, o n appe al, t hey only complain of the dismissal of their Section 1983 claim

. We thus confine our discussion to the allegations and arguments made surrounding appellants ’ Section 1983 claim.3 c our ts, both trial and appellate, ‘ take as true all evidence favorable to the nonmovant ’ and

‘ indulge every reasonable inference and resolve any doubts in the nonmovant ’ s favor. ’ ” Kirwan , 298 S.W.3d at 622 (qu oting Miranda , 133 S.W.3d a t 228). If the evid enc e raises a fact issue as
to jurisdiction , that issue is l eft for t he fact

- finder to decide. Id

. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to th e ju ris diction as a matter of law.” Id . (q u oting Miranda , 133 S.W .3d at 228 )

. A lthough a plaintiff need not put on its case to establish jurisdi ction, the plaintiff must

“ show that there is a dispute d material fact regarding the jurisdictional issue

. ” Id

. ; see Tex. R. Civ. P. 166a(c)

.

“ In Texas , sovereign immu nity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. ” Miranda , 133 S.W.3d at 224

. H owever, a county generally “ has no sovereign immunity from a [Section] 1983 claim. ” 2 Rocha v. Potter C ounty , 419 S.W.3d 371, 376 (Tex. App.

— Amarillo 2010 , no pet. ) (citing County of Dallas v. Sempe , 151 S.W.3d 291, 299

- 300 (Tex. App.

— Dallas 2004, pet. dis m'd w.o.j. ) ). Th us, a local governmental entit y “ may be sued for deprivation of constitutional rights under [S] ection 1983, but such deprivations must be pursuant to an official policy or pursuant to a widespread custom of the municipality. ”

2 Sect i on 1983 provides in relevant part : Every person who, under c olor of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U nited S tates or other person within the jurisdiction th e reof to the deprivation of any rights , privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceed ing for redress.

42 U

. S.C

. § 1983

.4 Roberson v. City of Austin , 157 S.W.3d 130, 140 (Tex. App.

— Austi n 2005 , pet. denied ) (citing Monell v. Department of Soc. Servs. , 436 U.S. 658, 690

- 91 (1978 ) ).

An official government policy can be proven in more than one way. It includes: (1) official decisions prom ulgated by a local government ’ s lawmaking body; (2) longstanding practices so persistent and widespread as to fairly represent government policy or the force of law; and (3) the acts or policies of officials who by l aw or delegation possess final poli cymak ing authority for the local government concerning th e action alleged to have caused the particular constitutional or statutory violation at issue.

Harris County v. Coats , 607 S.W.3d 359, 373 (Tex. App.

— Houston [14th Dist.] 2020 , no pet.) ;

see Dem ocrac y Coa l. v. City of Austin , 141 S.W.3d 282, 289 (Tex. App.

— Austin 2004 , no pet. ) ( policy can be official custom or take form of duly promulgated policy statements , regulations ,

o r similar act (citing Piotrowski v. City of Houston , 237 F.3d 567, 579 (5th Cir

. 200 1) ) )

. Thus, municipal liability under S ection 1983 req uires : “ (1) a policymaker, (2) an official policy or custom, and (3) a violation of constit utional rights whose ‘ moving force ’ is the policy or custom , ” which “ distinguish [es] individual violatio ns of employees from those tha t can be fairly identified as a ctions of the government itself

. ” Ro berson , 157 S.W. 3d at 140 (quoting Piotrowski , 237 F.3d at 578 )

. The plaintiff must “ plead facts showing that: (1) a policy or custom existed, (2) the govern menta l policymakers actually or constructively knew of t he
p olicy ’ s existence, (3) a constitutional violation occurred, and (4) the custom or policy served as the movi ng force behind the violation. ” Rocha , 419 S.W.3d at 376. The “ description of the polic y or custom and its relationship to the constitutional v iola tion cannot be conclusory; it must contain spe cific facts. ” Id

. A governmental unit may use a plea to the jurisdiction to challenge a S ection 1983 claim. See Tejas Motel, L.L.C. v. City of Mes quite , No. 05

- 19

- 00667

- CV,5 2020 WL 29885 66, at *5 (Tex. App.

— Dallas June 4, 2020 , pet. denied ) (mem. op. ) ; Jackson

v. Port Arthur Indep. Sch. Dist ., No. 09

- 15

- 00227

- CV, 2017 WL 1425589, at *5 (Tex. App.

— Beaumont Apr. 20, 2017 , no pet.) (mem. op.) ; City of Dalla s v. Saucedo

- Falls , 268 S.W.3d 653,
657 (Tex. App.

— Dallas 2008 , pet. denied ) . I f the plaintiff ’ s pled claims ha ve been challenged with evidence to support the dismiss al of the claims, “ the burden shifts to the plaintiff t o rai se a material fact iss ue rega rding jurisdiction to survive the plea. ” Jackson , 2017 WL 1425589, at *5 (c iting Miranda , 133 S.W.3d at 228 )

.
FACTUAL AND PROCEDURAL BACKGROUND In their petition, a ppellants pled that at the time of his stop, arrest, bo oking , and confineme nt, Atilano “w as in an Acute Drugg ed State and in need of medical assistance ” and that he died “as a direct result of being denied immediate medical attention by those who held
him in custody

. ” Appellants noted that the Texas District and C ounty Attorneys Ass ociation ( TDCAA ) ha s “ stress[ed] the impor tance of having officers trained in re cognizing the signs of a drugged defendant, ” quoting a “ recent ” TDCAA a rt icle as saying :

Recently however, drug impaired driving is

— also rightly

— receivi ng mo re attention fr om l aw enforce ment agencies. Although this increased focus will ultimately have traffic safety benefits, there are many difficulties in handling these types of cases: Peace Officers are generally not familiar with what may be subtle si gns o f drug impairme n t.

The next m yth is that drugged drivers are easy to identify. Highly impaired drugged drivers are obvious to most people, but those who are mildly impaired frequently escape arrest and prosecution

. It is imperative that officers are train ed on recogniz in g th e signs o f drug impairment by taking classes such as the Drug Recognition Expert (DRE) or Advanced Roadside Impaired Driving Enforcement (ARIDE) courses.6 Additionally, the TDCAA forensic science project has several tools available to p rosecutors and l aw e nforcemen t to assist in impaired driving detection and apprehension.

I n addition, the County ’s sheriff ’s office had issued a statement that “[d]rugged driving is just as dangerous as drunken driving and is treated accordingly ” and that “drug recognitio n of ficers wi ll admi nister different test [s ] to determine what the in dividual has taken. ” Appellants alleged that d espite the sheriff ’s office “stress[ing] ” that DREs “are available to assist in determining the drugged state of an impaire d driver, ” a rre sting officer
M ichael Fa rmer and the other two officers present during Atilano ’ s “ prolonged ” stop and arrest
were not DREs , were “ not properly trained to re co gnize basic medical distress in persons in custody , ” and did not obtain a D R E ’s ass istance in the field

. Furthe r , the sheriff ’s office had :

failed to have its jailers particularly, the jail supervisor to b e trained, maybe, not as DRUG R E COGNI TION EXPERTS but at least to be competent in detecting the indicators of a person that i s in a highly drug ged state because even a lay person can detect this condition and to provide the proper and necessary medical assistance to prevent a serious injury and or death as in the present case.
Despite the officers ’ lack of speci alized training , appella nts alleged :

al l the indicato rs of a drugged impaired driver were present as described hereinbelow. Yet no officer, either in the field or at the jail took it upon themselves to carry out a very simplistic task and duty to contact any medical profe ssional , including th e jail physicia n, Dr. Pascual Mendoza nor the Drug Recognition Expert on call to determine the acute drugged condition of decedent and he being [sic] in serious medical danger. No medical assistance was provided. He died a preventabl e deat h

.7 Appellant s pled tha t t he va rious officers were “not properly trained to recognize basic medical distress in persons in custody while in the field or at the jail so they can notify proper medical profess ionals, and or provide timely and proper medi cal car e
. ”
As “ clear ind icators th at [Atilano ] had ing ested drugs ” and needed immediate medical attention , appellants pointed to his erratic driving and failure of field sobriety tests , as described by the arrest report ; Deputy Farm er ’ s conclusion that At ilano was too i mpaired to drive ; At ilano ’ s profuse sweating ; a plastic baggie found in his car, which Farmer believed to be the kind used to store narcotics and which was “ apparently left in the vehicle ” and not tested for drugs or “ pr es ented to the dru g dog for possible drug dete ction ” ; At ilano ’ s refusal to consent to a dr

ug search of the car ; Farmer ’ s alerting the booking officers to Atilano ’ s swea t ing and r elaying his concern tha t Atilano might have ingested something other than alcohol and that they should

“ k eep an ey e on him f or unusual behavior ” ; and hospital reports stating that Atilano “ complained of shortness of breath both in the field during the arrest and in the jail. ” Appellants also pled that after Atilano was placed in a cell, he and his c ellmates “renewed his plea f or medical attention and no ne was given by ” jail personnel. App el lant s asserted that the County ’ s officers “ were violating clearly established Constitutional rights to have his health and safety provided for as a person in c ustody and was thu s unable t o provide th em for himself ” ; that the officer s ’ “ den ial of imme diate medical attention for an inmate

. . . is in accordance with [the County ’ s] policies, procedures , practices, and custom s ” a nd th at the officers were following t hose polici es and procedures and “ acting under color of law ” ; that the County breached both its du ty to en sure the safety of persons in its

cus tody and its duty to provide adequate trai ning and supervision of its personnel; and that the8 County “ knowingly o r recklessl y endan gered” Ati lano ’ s life and act ed with “ conscious disregard for the safety and well being of Mr. Atilano and the p ublic at large. ” The County responded wit h a plea to the jurisdiction, referenc ing documentary evidence largely co nsisting o f reports w ritten by the arresting offic er and jai l personnel. T he County asserted that appellants had “ failed to state a cause of a ction under 42 U.S.C. § 1983 against this governm ental entit y, as a ma tter of law ” ; that Atilano ’ s death was the result of h is

own con d uct in “ intentionally swallo w[ing] balloons of Methamphetamines ” ; and that the County was not deliberately ind ifferent to his medical n eeds and had not inadequately trained its empl oyee s “ in violation of the Ei ghth and Fourteenth Amendments as a lleged. ” T he County argued that the ev idence established “ that no employee knew of and disregarded an excessive risk to ” Atilano ’ s health and safety and i nstead showed that none of the office rs involve d “ drew the inference that Atilano had actually ingest ed lethal d oses of Metha mphetamine , ” no ting that the officers repeatedly asked him if he had consumed anything other than beer and that he repeatedly denied any such f act. Further, the County as serted that its personnel are certified and trained as requir ed by law a nd that

— as a matter of law

— a ppellants could not meet the

“ d eliberate indifferen ce standard ” required to su stain a claim for failure to pr ovide medical care

. Because the officers were not deliberately indi fferent to Atilano ’s m edical needs as a matter of
l aw and no County policy or c ustom “was a moving force behind any alleged constit utional deprivations, ” the County argued, it was entitled to dismissal of the Section 1983 claim

. A s evidentiary support , t he Count y provided various documents a nd reports
p r epared by County law

- enforce ment officers who interacted with Atilano fr om booki ng until his transport t o the hospit a l , including Deputy Farmer ’ s arrest reports and reports prepared by Booking Officer Christopher Herrington and Jail Officer Amber Hall

. The reports establish that9 Ati lano was stopped at about 1:15 a.m . for speeding and arrested for driving while intox icated

. H e was transported to jail , arriving a t about 2:20 a.m

. , an d was plac ed in a “detox cell, ” where he remained until about 3:00 a

. m. , when he started behavi ng more erratically

. O fficers spoke to him and attempted to check his vitals but were unsuccessful because Atilano was agitated and could not remain st ill . A bout forty

- five minutes after h e arriv ed at the jail, Atil ano was plac e d in a van to be driven to the hos pital

. During the drive, t he transporting officer “tried to stay in

ve rbal contact with Atilano by calling his nam e , ” and Atilano initially “ respond [ed] with a
mutter ” and then stopped responding. When the v an arrived a t the hospital about five min utes l a ter , Atilano had a “ weak rapid pulse ” and “completely di lated , ” unresponsive pupils. Hospital staff performed CPR for about t en minutes until “they regained a pulse ” and the n placed him on a ventilator. He di ed of acut e metham phetamine intoxicatio n. F arme r ’ s arrest report states that w hen he approached Atilano ’ s car after s topp ing him for speeding , he smel led “ a strong odor of alcoholic beverage ” and saw several open bottles of beer and an “ unopened can in side a therm a l sl eeve, in the driver ’s si de doo r. ” Atilano got out of the car as requested , and Farmer noticed “ a strong odor of alcoholic beverage coming from h is
person ” and that his eyes were watery a nd bloodshot and his speech was slurred

. Atilano ad mitted he ha d been drinkin g beer and that his d river ’s license was s uspended and consented to a field sobriety test, showing signs of into xication in the various tests. Based on the test indi cator s, the open beers , and his observations of Atila no ’ s condit ion , Farmer d etermin ed he

“ was too impaired to safely operate a motor vehicle, du e to alcoholic beverage consumption , ” placed him under arrest , hand cuffed him , and placed him in the patrol car

. W hile searching the car for o pen containers, Farmer “ observed a small, em p ty, pla stic bag ( jeweler ’ s bag), i n the passenger floor board , ” which he believed , b ased on his training and experience, was the kind10 “ used to store narcotics. ” Atilano denied that he had any narcotics in the car and refused to consent to a d rug search o f the ca r , so Farm er asked dispatch to send a K

- 9 officer to the scene. During the stop, Atilano complained of being hot , and Fa r mer sa w that he was “sweating from his forehead

. ” Far mer “ asked if he was okay , ” and Atilano res ponded that he was hot

. He d enied hav ing in gested anything oth er than alcohol and said he was sweating because “ he was nervou s. ” When the K

- 9 officer arrived, the dog did not alert t o narcotics , so Farmer released Atila no ’ s car and belongings to a friend Atilano had c alled during t h e arr est

. A t the jail , Atilano r efused to sign various forms, and Farmer noticed th at

“ Atilano was still sweating from his forehead

. ” He ask ed again if Atilano had ingested anything other than alc ohol, explai ning that “ if he had, he mig ht need medical a tte ntion , ” an d Atilano again respo nded that he had not ingest ed anything else and that he did not need medical attention. Atilan o similarly told the booking officer that he had only ingest ed beer, refusing to
say how m uch

. Fa rmer told th e booking office r th at because of Atilano ’ s profuse sweat ing, he tho ught Atilano “ may have ingested something other than alcohol, and to keep an eye on him for unusual behavior. ” However, Farmer said in his report that “ Atilano was lucid and coherent, and answered all qu e stions asked by the b ooking off ice r. ” Farmer left to return to servi ce but ca l l ed to check on Atilano about fort y - fi ve minutes later. He was told that Atilano was being taken to the hos pital “ for treatment of an unknown illnes s ” a nd was asked if he knew whether Atilano had
i ngested dr ugs during their encounter

. Farmer responded that Atilano had denied ingest ing anything other than beer and that “ other than profu se s w eat ing , ” Farmer had not seen sign s that Atilano was under the influ ence of anything othe r than alcohol

. Herr ington ’ s r epo rt state s that Atilano arrived at the jail behaving as if he were intoxicated or u nder the influence of narcotics

— “ [h] is skin color was distorted, his speech was11 slurred, he had difficulty standing, and wa s muttering nons e nsical phrases. ” Ati lano “ was
sta ggering and kept slurring his words as i f he were intoxicated , ” and H errington “ noticed that he was sweating profusely and his face was discolored into a green to pale color

. ” A til ano denied having consum ed anything othe r than beer and vodka, specifica lly den ying that he had ingested any drugs , but Herrington noticed that when Atilano stat ed that he “ was only drunk, ” he “ broke eye contact ” and “ started to fidget with his hands. ” Atilano refused to sign se veral forms , say i ng

“ he ‘ was good, ’ ” a nd b ecause He rrington believed Atilano was “ extremely into xicated ” and posed a ris k to himself, he placed Atilano into a detox cell “ so that he could sober up

. ” Atilano
entere d the cell without incident , and a bout thi rty minutes late r , Hall spoke to him “ to see if he would tell her what he had taken besides a l cohol , ” remov ing him from the cell and h aving him sit in the booking area in hopes that he would cooperate

. Herrington ke pt checking on them “ to

ensure [Hall ’ s] safet y and the c o ndition of Atilano ” a nd not iced th at Atila no ’ s face had gotten paler and that he was shaking and still swea ting pro fuse ly. After H a ll and another o fficer tried

“ several times to get Atilano ’ s vitals b ut were unsuccessful due to his medica l state , ” the of f icers decided to send hi m to th e h ospi tal . They carr ied him to a wheelchair and wheel ed him to a transport van , and by the time they reached the van , Atilano had become “ stiff and could not function under his own power. ” Hall ’s report s tates that start i ng at about 2: 40 a.m. , after At ila no was placed in the deto x cell, he “ would tap on the door, sing, and yell

. ” She asked him what was wrong , and he said “ that he was sweating and didn't feel right ” but denied having ingested anything othe r than beer. A t i lano “ continued to ge t up and d own , pace around the cell, clench and unclench his fists, and yell things in Spanish , ” and then told Hall “ that he had something wr ong with his heart ” but never explained what was wrong with it. Atilano aske d to leave the c e ll and get some wate r12 “ because it was hot, ” and Hall let him out , direct ing him to a drinking fountain

. Atilano sat down on the steps in the booking area , and Hall “ be gan asking Atilano more questions about what he had taken tonight. ” “ A tilano was sweat i ng profusely and seem ed to not be able to calm down , ” but when Hall and another officer told him “ that he needed to tell us what he had taken so we could get him treatment , ” he again insisted he had only drunk beer. Hall and the other off icer tried to ta k e Atilano ’s vitals bu t “ could n ot get a reading due to his not being able to keep still , ” so they decided to transport him to the hospital. The County attached reports by o ther officers , who relayed similar observations, stating that whe n Atilano arrive d at the jail, he “ see med to be und er the influence of alcohol but very responsive to the order s given ” ; that when Atilano was let out of the detox cell, he “ seemed dis oriented ” and was “ stumbling, sweating, and mumbling , ” “ sweaty, shaking, moving and wrin g ing his hands, and hi s breathin g w as labored ” ; that when th e officers tried to check Atilano ’ s vitals a t about 3:00 a.m., he “ was shaking too bad for us to get a good reading and could not hol d his hand straight ” ; that Atilano told the off icers he was “ fu c ked up ” but repeatedl y denied h av i ng ingested anything other than alcohol despite being told at least twice that he “ was not going to get into anymore trouble and that [the officers ] just need ed to know what he had taken ” so they could hel p him ; and that o ne officer followed the van t o th e hosp ital to assess Atilano ’ s condi tion , was told that “ Atilano was not responsive and was on a venti lator . . . because he was not breathing on his own , ” an d called Ati lano ’ s grandmother to advise her o f the situation , wait i ng to meet her at the hosp ital and t ell her what had happened

. Jail Administrator and Jail Captain Todd Allen provided an affidavit summari zing the night of Atilano ’ s death . H e averred that “ all of the deputie s and jailers at the Tom Gre en County Jail w h o had any contact with Jua n At i lano were Texas Commission on Law Enforcement (TCOLE) certified jailers and13 peace officers ” ; that ja ilers under his supervision are “ properly trained and comply with ”
TCO LE ’ s “ basic jailer course education re quirements ” ; and that the j ail ’ s “ Policies incl u ding its medical services plan complies with and has been approved by the Texas Commission on Jail Standards [TCJS]. ” The County also provided a n exp e rt report by Margo Frasier, a “criminal justice consulta nt and expert ” w h o reviewed the documents r elat e d to Atilano ’s arrest and jailing

. She stated that the County has “ policies which provide for the assessment of inmates for medical issues and mental health issues ”; “ policies which provide for the provision of medical and m ental health treatment to inma t es ”; “ a training program for its detention officers which meets the minimum required by TCOLE ” ; and “ policies which require officers to regularly observe inmates in accordance with the regulations of the Texa s Commission on J ail Standards

. ” She also stat e d tha t Atilano ’ s autops y concluded that he “ died due to acute methamphetamine intoxication. ” 3 F rasier found no indication that the County or its employees had violated Atilano ’ s constitutional rights , discri minated against h im , or acted with deli bera te i n diffe rence for his well

- being . Instead, she determined that the sheriff ’ s office and its personnel had adopted and f ollowed TCJS

- approved p oli cies fo r screening in mates for medical issues , supervising and ob serving inmates , and providing medical care
. S h e opi ned that the staff was provided with adequate train ing that “ met or exceeded the regulations of TCOLE ” and had appro priately screened Atilano for medical issues , housed him in a detox cell for observatio n purposes , clos e ly observed him, ask ed rep eate d ly if he had ingested any drugs, attempted to check his vitals when

3 During the hearin g on its plea to the jur is di ction, the County stated that Atilano ’s autopsy showed that he “ had eight

- balls that he evidently had swallowed, because when he knew he was g oing to be stopped for the traffic viol ation, he swa l lowed them , ” and that he “ had 840 0 nanograms per milliliter t hat were fo und inside his system, which was the cause of his death. ”14 he sho wed sign s of something “ more than mere in toxication, ” and immediately transported him to the hospital wh e n those ef forts were unsucces sful

. Frasier c o ncluded, “ In my profession al

o p inion , the actions taken by Tom Green County were those that a reasonable corrections officer and corrections administrator could have taken under the same or similar circumstances. ”
In their response to th e County ’s plea t o the jurisdiction, appell ants state d that the County “vaguely allege[d] ” that appellant s had fail ed to state a claim and “va guely allege [d] some type of defense of governmental immunity, ” leaving appellants “ to speculate ” that the County was a ctually see k ing dismissal under R ule 9 1 a
. See T ex. R. Civ. P. 91a ( p arty may seek dismissal of “cause of action on the grounds that it has no basis in law or fact ”). They then went
on to explain how the County ’s motion, viewed through th e lens of R u le 91a, must fai l

. Appellants did not pres ent a ny ev idence to controvert the Coun ty ’s arguments, and during the hearing on the County ’s plea , they argued that the County had improperly attached evidence to its plea and that the matter should instead be br oug ht as a summa r y judgment, noting that th e Co u nty had also filed a motion for summary judgment ma king identical arguments and a ttaching identical evidence

. 4 Appellants asserted that there was disputed evidence as to “every single one of

” the County ’ s ar guments but that because the plea stated t hat i t was broug ht under R ule 8 5 of the r ule s of c ivil procedure , 5 they “weren ’t put on notice

. . . that we would be expected to respond to all of these things that he has pled and attached as exhibits in his plea dings. ” Appella n ts stated that they “can ’t res p ond under a rule tha t doesn ’t give us the same ability to

4 The moti on for summary judgment was not considered by the trial court at the time it considered the County ’ s p lea to the j u risdiction

.
5 See Tex. R. Civ

. P

. 85 ( defendant ’s original answer “ may consist of

. . . pleas to the jurisdiction

. . . or any other dilator y pleas; of special exceptions, of general denial, and any defense by way of avoidance or estoppel, an d it may pr e sent a cross

- action ”)

.15 introduce evidence ” and that they did not know “w hat evidentiary rules we ’re operating under here , ” with t he County respond ing that a “plea to the jur isdiction is ev i d entiary, and evidence is submi t ted under Rule 85. ” The trial court took the matter under advisement and later signed an order granting the County ’s plea to the jurisdiction

.
DISCUSSION Appellants raise five issues on appeal, arguing th a t the trial cour t erred in granting the County ’ s plea to t he j u risdi ction because appe llants ple d all necessary jur isdictional facts ; the County did not introduce , and the court did not admit, evidence d isputing appellants ’ pled jurisdiction al f acts; and e ven if the plea ’ s attachments were properly con s idered by the c ourt , th e County did not prove that appellants ’ pled facts were insu fficient to establish jurisdiction. They also argue that even if the court properly grant ed the plea, the pleadi ngs did not affirmatively

ne g ate jurisdiction a n d the y thus should hav e been all owed the opportunity to amend

. We first consider appellants ’ argument that the County “failed to intr oduce and the trial court failed to admit any evidence disputing the jurisdictional f acts [pled] by a p pellants. ”
T he County ’ s plea t o th e juri sdiction c halleng ed the existence of jurisdictional facts, with supporting evidence attached

. When a plea to the jurisdiction challenge s the existence of jurisdictional facts, the trial court “ may consider evidenc e and must do so when neces sary to resolve the juris dictional issues raised

. ” Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000)

. Further, “ [t] here is no rule specifying the manner in which a party must present evidence in su pport of a plea t o the jurisdiction

. ” Schronk v . City of Burleson , 387 S.W.3d 692,
702

– 03 (Tex. App.

— Waco 2009 , pet. denied ) . T he C ounty filed its plea and attachments more than a m onth before the hearing , and appellants filed a response addressing the p lea as if it wer e16 instead a motion to dismiss u n der R ule 9 1a . Altho ugh appellants may have misunderstood the ple a - t o - the

- jurisdiction procedure , t here is no indication that appellan ts were surprised or prejudiced by the evidence provided by the County, se e id ., and t he e v idence was thus properly befor e the trial court for its consideration of the jurisdictional issue , s e e Kirwan , 298 S.W.3d at 621

- 22 ; Blue , 34 S.W.3d at 555

. We overrule appellants ’ third issue on appeal. We now turn to whether the trial court properly g ranted the County ’ s plea to th e jurisdict ion, given the pleadings and the supporting evidence presented by the County.
A muni c ipality or other local government owes pretrial detainees and convi cted prisoners the duty to provide “ basic hu man needs, inclu d ing medical care and protectio n from harm , during t heir confinement

. ” 6 Hare v. City of Corinth, Miss. , 74 F.3d 633, 639, 650 (5th Cir. 1996) ; see Rocha , 419 S.W.3d at 377

. I n a Section 1983 claim in which “ the complain ed

- of harm is a par ticular act or o m ission of one or more official s , the acti on is c har acterized properly

as an ‘ episodic act or omission ’ ” case , in which the detainee ( or , in this case, his representatives )

“ complains first of a particular act of, or omission by, the actor and then points d erivatively to a policy, custo m , or rule (or lack t hereof) of the municipality that permitted or caused the act or omission. ” 7 Scott v. Moore , 114 F.3d 51 , 53 (5th Cir. 1997) (en banc) . The facts as alleged by

6 Both de t ain ee s and convicted prisoners have the constitutional right to basic human needs, but a detainee ’s constitutional rights “ flow from both the procedu ral and substanti ve due proc ess guarantees of the Fourteenth Amendment , ” while a convicted priso ner ’s righ t s “spring from the Eighth Amendment’s prohibition on cruel and unusual punishment” and “with a relatively limited reach from substantive due process. ” Hare v. City o f Corinth, Miss. , 74 F.3d 633, 639 (5th Cir . 1996)

. “ [ T ] he State must distinguish betwee n pretrial detainees and convicted felons in one c rucial respect: The State cannot punish a pretrial detainee. ” Id . ( citing Bell v. Wolfish , 441 U.S. 520, 535 (1979) )

.
7 Altern atively, a det ain ee might b ring a “ conditio n - of

- confinement ” claim, which cha l lenges “ a general condition of confinement , ” such as “ the number of bunks in a cell or his tele vision or mail privileges

. ” S cott v. Moore , 114 F.3d 51, 53 (5th Ci r. 1 997).17 appellants plead an episodi c - act

- or - omissio n claim , and we thus proceed un d er that fr amework

. S

ee Olabisiomotosho v. City of Houston , 185 F.3d 521, 526 (5th Cir. 1999) (plaintiff detainee ’s complaint turn ed on jail personne l ’ s “ alleged failure s to take better care of her ” and to

“ m edically screen h er and secure her to treatment , ” a nd such complaint “ perfectly fit s the definition of the episodic omission ” )

. When a n episodic

- act

- or - omission claim is brought against the municipa l defendant , “ the plaintiff must demonstrate a municip al employee ’ s subj e ctive indifference and additio n ally that the munic ipal employee ’ s act ‘ resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the [plaintiff] ’ s constitutional rights. ’ ” 8 Id

. (quoting H are , 74 F.3d at 64 9 n.14) ; see Rocha , 419 S.W.3d a t 378

. “ D eliberate indifference ” in this context requires a showing “ that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner ’ s health or safety could be dra wn and (2) that th e y actually drew an inference t h at such p otential f or harm existed. ” Bradley v. Puckett , 157 F.3d 1022, 1025 (5th Cir. 1998)

. “ Deliberate indifference is an extremely high standard to
meet , ” and without a showing “ that a county employee acted with subjec t i ve deliberate indifference, t h e county cannot be held liable for an episodic act or omission

. ” Rocha , 419 S.W.3d at 378

- 79 (citin g Gobert v. Caldwell , 463 F.3d 339, 346 (5th Cir. 2006) ; Flores

v
. County of Hardeman , 124 F.3d 736, 73 9 ( 5th Cir.1997) )

.

8 A condition

- of

- confinement claim is analyzed u nder a “ reasonable

- relationship ” s tandard , meaning that “ a pretrial detainee cannot be subjected to condition s or restrictions that are not reasonably related to a legitimate governmental purpose

. ” H are , 74 F.3 d at 640 (citing Bell v. Wolfish , 441 U.S. 5 2 0, 539 (1979) )

. However, the Fif t h Circuit explained that the use of different standard s in the two kinds of claims “ does not scale back the constitutional rights of pretrial detainees ” “ because a pr oper applic ation of Bell ’ s reasonable

- relat ionship test is functionally equivalent to a d e liberate indifference inquiry. ” Id . at 643.18 A ppellants pled that at the tim e of his s top, arres t, booking , and confinement, Atilano “was in an Acute Drugg ed State and in need of medical assistance ” and that he requested medical attention b ut was ign ored by jail personnel. They fur ther pled that the County had failed
to properly t rain its o fficers as DREs or “ at least to be competent in detecting the indicators of a person that is in a highly drugged state , ” asserting that “ even a lay person can detect this condition and to provide the proper and nec e ssary medical assistance

. ” Ho w ever, in n oting that
TDCAA had “stress[ed] the impor tance of having officers trained in re cognizing the signs of a drugged defendant, ” appellants q uoted TDCAA as stating that drug impairment m ay o nly have

“ subtle signs ” and t hat it is a “m yth ” that drugge d drivers a re easy to i dentify, although “[h] ighly
im paired drugged drivers are obvious to most people. ” Appellants alleged that “all of the indicators of a drugged impaired driver were present ” and that no ne of the officers contacted a medical profession a l to exami ne Atilano. As signs of his “ Ac ute Dr ugged State, ” a ppellants pointed to At ilano ’ s erratic driving and failure of the field sobriety tests, Farm er ’ s conclusion that At ilano was too impaired to sa fe ly operate a mot o r vehicle, Atilano ’ s profuse s w eating, th e plastic b aggie found in his car , his refusal to consent to a dr ug search , Farmer ’ s stated concerns about Atilano ’ s swea t ing and tha t he might have ingested something other than alcohol , and Atil ano ’ s complain ts a b out shortness of breath.
How e ver, the C ounty provi ded evidence that Atilano had several opened containers of beer in his car and admitted to having drunk them. Farmer concluded based on Atilano ’ s failu re of the field so briety tests t h at he was too impa i red to drive “ due to alcohol ic beverage c onsumption. ” When Farmer noticed Atilano ’ s sweating and found the plastic baggie, he asked Atilano if he had consumed anything else, and Atilano denied it , saying he was

s weat ing because he was n ervous
. Further , t he K

- 9 search did not find any other indi cations of19 drugs in the car. A t the jail, Farmer relayed his concerns, checking back about forty

- five minutes later to see how Atilano was d oing. Jail officers repeatedly asked if A tilano had co nsumed anything ot h er than alcohol, but he again d en ied that he had

. H e was placed in a detox cell so he could be closely observed, and a fter about twenty minutes, when his behavior g rew more erratic, j ailers removed him from the cell . They renewed their questions about w h ether A tilano had consumed any t hing other than alcoh ol, assuring him he would not get in trouble if he had , and he continued to insist he had ingested only alcohol. They attempted to check his vitals and, when those efforts were unsucce ssful , decided to t ransport him to the hospital

. In all, At ilano was a t the jail for about forty

- five minutes, and the officers ’ reports in dicate that h is condition deteriorated fairly quickly, over a period of at most fifteen to twenty minutes.

“ A show ing of deliberate i ndifference requires the priso n er to subm it evidence that prison officials ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disrega rd for any serious medical needs.’ ” Gobert , 463 F .3d at 346 (quoting D omino v. Texas Dep ’ t of Crim.
Justice , 239 F.3d 752, 756 (5th Cir. 2001 )). “ To succeed on a failure

- to

- train claim, a plaintiff must establish (1) inadequate training procedures, (2) t hat inadequate tra i ning procedures caused the inj u ry, and (3 ) delib erat e indifference of municipal policymakers. ” County of El Paso

v. Dorado , 180 S.W.3d 854, 8 72 (Tex. App.

— El Paso 2005 , pet. denied ) (citing Pineda v. City of
Houston , 291 F.3d 325, 332 ( 5th Cir. 2002) )

. The County established that it s poli cies and trainin g were appropriate and approved by the governing a gencies and that its personnel followed those policies and training in dealing with Atilano that night , and “ [t] here is no constitution al requirement tha t municipalities provide jailer s and law e nforcement personnel with sophisticated medical training so that they20 will detect hidden medical problems. ” Id . at 864 . Instead, a pretrial detainee “ bears the responsibility for informing the j ail personnel abou t his or her medical condition i n a truthf ul

manner , ” and a county is “ not required to train its jailers how to recognize the ambiguous signs of drug dependency or drug overdose. ” Id

. ; see Morris v. City of Alvin, Tex. , 950 F. Supp. 804,
806 (S.D. Tex. 19 9 7)

. As in Dorado , Atilano rep e atedly ref used to ide ntify the nature of his medical condition in a truthful manner when he was arrested and at the jail, and jail personnel responded to the information provided to them by Atilano , keeping him under supervi s ion and checking when h is beha v ior became more errat ic , and “ [i] t is unreasonable to require that the jai l personnel ascertain when an individual does not disclose the extent of his or her drug dependency

. ” 180 S.W.3d at 864. Atilano ’s death was caused b y his ingesting large quantiti e s of metha mpheta mine , and t hat action

— the effects of which mani fested about two hours after h is initia l stop

— cannot on this record give rise to an a ction against the County

. S ee Morris , 950 F. Supp. at 806 ( “ At the time o f her arrest, Mrs. Morris had alr e ady taken the overdose of drugs

w hich later that afternoon caused her death. The fact that the effects of her overdose did not manifest themselves until after she had been taken into custody does not gi ve rise to an acti o n against the City. ” ); Dorado , 18 0 S.W.3d at 86 5 ( “ It is unreasonab le to require that the jail personnel ascertain when an individual does not disclose the extent of his or her dru g dependency. The fact that the effects of his dependenc y did not manifest themselves until several hours af t er he had been taken i nto custody does not give rise to an action against the County. ” )

. Similarly, the County established that it s policies neither deprived Atilano of adequate medical assis tance nor violated the const i tutionally required level of medi c al care : despite Atila no ’ s denial s and a lack of evidence beyond one empty baggie to show he had21 consumed drugs, Farmer relayed his concerns to the jail officers, who placed him where he could be observe d, mon itored him, l et him out when he grew agitated, and attempted to check his vitals . Soon after those unsuccessful attempts, they transported him directly to the hos pital a short distance away

. See Morris , 950 F. Supp. at 8 07 ( officials “ did in fact p rovide Morris with prompt medical care on two occasi o ns during her short st ay , ” “ calle d EMS teams to the jail to administer to Mrs. Morris on both occasions of her manifestation of problems , ” and had her transferred to hospital “ [t] he moment that Mrs. Morr is began to exhibi t physical symptoms of a serious m e dical problem ” ) ; Dorad o , 180 S.W. 3d at 865 ( “ When Dr. Miranda suffered his seizure during the late evening of March 2, 1997, the jail nurses responded to the medical emergency and immediately took action by contacting Dr. Bl ock, moving Dr. Miranda to the j ail clinic, administer ing medicat ion as instructed by Dr. Block, and contacting EMS to transport Dr. Miranda to the hospital when the jail personnel determined he was not breathing. ” )

. Because t he Coun ty established as a matter of law that appellants co u ld not show that any C ounty e mplo yees acted with d eliberate indifference to Atilano ’ s needs , an “ extremely high standard to meet , ” the C ounty showed that it cannot be held liable for appellants ’ S ection
19 83 claim. See G o bert , 463 F.3d at 346 ; Rocha , 419 S.W.3d at 378

- 79

. App ellants did not raise any fact issue as to deliberate ind ifference , and the trial court therefor e properly granted the
C o unty ’s plea to the jurisdiction on appellants ’ S ection 1983 claim based on a n a lleged failure to train or failur e to provide medical ca re. We ove rrule appellants ’ fi rst, second, fo u rth , and fifth issues on appeal , all of which contend that the trial court improperly granted the plea to the jurisdicti on. As for w hether appellants s hould be allowed the opp ortunity t o amend their pleading s, a litiga nt generally shoul d be given the chance “ to cure pleading defects when the22 pleadings do not allege enough jurisdictional facts

. ” Texas Dep ’ t of Transp

. v. Ramirez , 74 S. W.3d 864, 8 67 (Tex

. 2002). However, “ this is not a p leading

- defect case , ” and instead the undisputed evidence affirmatively show s that the County did not violate Atilano ’s constitutional rights and , therefore, that appellants ’ factual complaints cannot gi ve rise to a Secti o n 1983 claim

. See id .; City of H o uston v. Ranjel , 407 S .W.3d 880, 893 (Tex. App.

— Houston [14th Dist.] 2013 , no pet. ) ( no need to allow plaintiff s “ another opportunity to a mend ” when “ jurisdictional evidence does not raise a fact issue o n the key question of whether ” city could be held li a ble);

see a lso Goss v. City of Ho uston , 391 S.W.3d 168, 175

- 76 (Tex. App.

— Houston [1st Dist.]
2012 , no pet.) ( when evidence establishes that trial court lacks subject

- matter jurisdiction due to
governmen tal immunity , dism i ssal w ith prejudice is proper )

.
C O NCLUSION The County established as a mat ter of law that it did not violate Atilano ’ s

con stitutional rights , and the t rial court thus properly granted the County ’ s plea to the jurisdiction

. We a ffirm t he trial court ’ s d i smissal of appellants ’ Section 19 8 3 c laim.

____________ ___________ _________ ____ ______ Darlene Byrne , Chief Just i ce Before Chief Justice Byrne, Ju s tices Baker and Kelly Affirmed
Fi l ed: January 21, 2022