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Intentional Injury by a Government Employee in Texas

In a recent Texas appellate case, the plaintiff argued that the lower court should not have granted a county’s plea to the jurisdiction. The case arose when the Deputy Constable for the county used his Glock to shoot and injure the plaintiff.

When he applied for the job, the Deputy Constable had revealed he was medicated for mood stabilization because of a chemical imbalance. In the five years before being employed with the county, he held 21 jobs and was fired from 12. He’d been dismissed from a law enforcement academy within 4 months of attending because he’d failed minimum safety standards for traffic stops, lied, and was unable to function as a team member, among other reasons.

When he was hired, he identified the Glock as his primary weapon and the county approved his use of this firearm. Before the incident that resulted in the plaintiff’s injuries, he was involved in four other incidents, including an anger management issue as a security guard, two road rage incidents, and showing hostility toward two other law enforcement officers.

After the incident in question, the injured woman sued the county as well as the Deputy Constable, and another person. She claimed that the county had misused property by hiring the Deputy Constable, misused property by authorizing the Deputy Constable to have a firearm, and misused property by failing to withdraw authorization for him to use the Glock. She claimed these negligent acts were the legal reason for her injuries.

The county filed a plea to the jurisdiction, which was granted. The plaintiff appealed. The appellate court explained that a governmental entity is immune from liability for torts unless the entity or the legislature has waived immunity and agreed to be sued under the Texas Tort Claims Act. Sovereign immunity could be the basis for a plea to the jurisdiction—a procedure whereby a cause of action is defeated without considering whether the claims in the lawsuit are meritorious.

The plaintiff in this case argued, among other things, that the trial court had made a mistake since the county hadn’t conclusively shown a lack of jurisdiction. She argued that Section 101.021(2) of the TTCA waived sovereign immunity for personal injury and death caused by a use of tangible personal or real property where the governmental entity would be liable to the claimant if it were a private person.

The county had argued that the plaintiff claimed an intentional tort, which was excluded under the TTCA, and that the TTCA didn’t recognize a claim for negligent hiring. It also argued that sovereign immunity wasn’t waived since the Deputy Constable wasn’t within the scope of employment at the time he shot her.

The appellate court explained that the TTCA’s limited waiver didn’t apply to intentional acts. However, if the focus of the claim were on the negligence of the governmental entity rather than its employee’s intentional conduct, the claim wouldn’t be treated as being based on an intentional tort. In this case, the act of firing the gun wasn’t the basis of the claim. Rather, she was arguing that without approval from the county, the Deputy Constable wouldn’t be entitled to use the Glock.

The appellate court determined that she’d stated facts under which her claim wasn’t excluded from the sovereign immunity waiver, and the county hadn’t met its burden of showing that the intentional torts exclusion of the TTCA applied.

However, the Deputy Constable had owned the firearm, so the county hadn’t negligently entrusted it to him. The county argued that the Deputy Constable wasn’t working when he shot the Glock. The plaintiff was claiming that the county’s use of property caused the injuries. Essentially, she was claiming that the authorization or failure to remove authorization from use of the firearm was within the scope of employment.

The appellate court determined it was an error to grant the plea, except as to the negligent entrustment claim. The case was sent back to the lower court for further proceedings.

If you are injured by someone else, the experienced San Antonio personal injury attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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