Vasquez, Alfredo v. Hudson, Jeff

NUMBER 13-98-582-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ ALFREDO VASQUEZ, Appellant, v. JEFF HUDSON, ET AL, Appellees. ____________________________________________________________________ On appeal from the 156th District Court of San Patricio County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Yañez, and Rodriguez Opinion by Justice Yañez This case arose from the arrest of Alfredo Vasquez by Jeff Hudson, an officer with the Texas Department of Public Safety. Vasquez sued Hudson and the Department of Public Safety, pleading seven causes of action: (1) Assault (2) Excessive, unreasonable, and unnecessary force (3) Wrongful, oppressive, and illegal arrest (4) Negligence (5) Negligence in the manner of arrest (6) Deprivation of constitutional and legal rights, including 42 U.S.C. § 1983 (7) Negligent use of tangible personal property. Appellees filed a plea to the jurisdiction and moved for summary judgment on the grounds of official immunity and sovereign immunity. The trial court granted summary judgment on all claims except claims (1) and (6). Hudson brought an interlocutory appeal of the denial of his motion for summary judgment on these claims, and this Court affirmed the trial court's denial of the summary judgment. See Hudson v. Vasquez, 941 S.W.2d 334 (Tex. App.--Corpus Christi 1997, no writ). The case proceeded to trial on claims (1) and (6). A jury returned a verdict in favor of appellees, and the trial court entered a judgment that Vasquez take nothing. On appeal, Vasquez raises no complaint regarding the trial, but rather challenges only the trial court's summary judgment on claims (2), (3), (4), (5), and (7). We hold that, under the Texas Tort Claims Act, appellees were protected by immunity, and consequently we affirm the judgment of the trial court. In Texas, governmental units such as the Department of Public Safety are immune from tort liability unless the Legislature has waived immunity. Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that this immunity is waived and a governmental unit in the state is liable for: (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: (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 (Vernon 1997). Vasquez argues that he was injured by Hudson's use of handcuffs. In an affidavit attached to his response to the motion for summary judgment, Vasquez gave this description of the events underlying his claims: Trooper Hudson grabbed me without warning, pushed me towards one of the law enforcement vehicles and pulled my hand and arm behind my back in a very rough manner while trying to put handcuffs on me. As a result of the force that he used while trying to put the handcuffs on me and because of the angle at which Trooper Hudson forced my arm back behind my back without bending my elbow, my elbow was broken. These facts, as described by Vasquez, do not qualify for a waiver of immunity under the Tort Claims Act. The injury Vasquez alleges, a broken elbow, was not caused by a "condition or use of" the handcuffs. Vasquez alleges that Hudson broke his elbow when Hudson used his hands to seize Vasquez's arm and force it into position to apply the handcuffs. The alleged injury to Vasquez's elbow occurred before the handcuffs were applied. Because Vasquez's injury was not caused by "a condition or use of tangible personal property," i.e., handcuffs, the Department of Public Safety's sovereign immunity remained in place. Vasquez relies on City of San Antonio v. Garcia, 974 S.W.2d 756 (Tex. App.--San Antonio 1998, no pet.). In that case, Garcia alleged that he was wrongfully arrested and that handcuffs were placed onto him so tightly that he suffered pain, injury, and permanent damage to his wrists. Id. at 757. Vasquez does not make an equivalent complaint that the actual use of the handcuffs caused him injury. Furthermore, Garcia was primarily concerned with whether a fact issue was present regarding whether the arresting officer had acted in good faith and therefore was entitled to official immunity. See id. at 758-59. To be entitled to summary judgment on the basis of sovereign immunity, a Texas state governmental entity need not establish as a matter of law that its agent acted in good faith. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). Therefore, Garcia is not on point. A judgment in an action against a state governmental unit under the Texas Tort Claims Act bars any action involving the same subject matter against the employee of the governmental unit whose act or omission gave rise to the claim. Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 1997). This statute bars recovery against the employee even when the judgment against the governmental employer occurs simultaneously with the judgment against the employee. Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995). Therefore, once the trial court properly granted summary judgment in favor of the Department of Public Safety, Vasquez was barred from obtaining any recovery against Hudson. The judgment of the trial court is affirmed. ____________________________________ LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 17th day of August, 2000.