County of Galveston, Texas v. Cassaundra Nichols, Individually and A/N/F Minor 1, Minor 2 and Minor 3

Reversed and Dismissed and Memorandum Opinion filed October 12, 2006 Reversed and Dismissed and Memorandum Opinion filed October 12, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00322-CV ____________ COUNTY OF GALVESTON, TEXAS, Appellant V. CASSAUNDRA NICHOLS, INDIVIDUALLY AND AS NEXT FRIEND OF MINOR 1, MINOR 2, AND MINOR 3, Appellee On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 05CV0942 M E M O R A N D U M   O P I N I O N Cassaundra Nichols, individually and as next friend of Minor 1, Minor 2, and Minor 3, sued the County of Galveston, Texas, alleging negligence. Galveston County filed a plea to the jurisdiction asserting governmental immunity, which the trial court denied. Galveston County now brings this interlocutory appeal from the denial of its plea. See Tex. Civ. Prac. & Rem. Code Ann. '51.014(a)(8) (Vernon Supp. 2006) (authorizing interlocutory appeal from the denial of a plea to the jurisdiction based on governmental immunity). We reverse the trial court=s order and dismiss Nichols= cause of action for want of subject matter jurisdiction. Background In her petition, Nichols alleges that on November 15, 2003, she obtained a protective order against Guy Nichols from Judge Kathleen McCumber, the Justice of the Peace for Galveston County Precinct 8-1. At that time, Guy Nichols was running for reelection as Constable for Galveston County Precinct 7. Nichols further contends that on November 17, 2003, members of Judge McCumber=s staff transmitted via facsimile machine a copy of the protective order, along with Nichols= affidavit used to obtain the order, to the Chief Clerk of Precinct 7. The Aprivate and personal information@ contained in the affidavit was apparently subsequently released by Guy Nichols= political opponents to a local newspaper for publication. Cassaundra Nichols alleges that the misuse of the fax machine by Galveston County personnel caused her and her children injury, including mental anguish, embarrassment, humiliation, and stress. In its plea to the jurisdiction, Galveston County asserted governmental immunity. The trial court denied the plea. Sovereign & Governmental Immunity Sovereign immunity from suit defeats a trial court=s subject matter jurisdiction unless the state expressly consents to the suit. Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). The Texas Tort Claims Act provides a limited waiver of governmental immunity when certain conditions are met. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021, 101.025 (Vernon 2005); Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The Act provides as follows: A governmental unit in the state may be sued 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. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court=s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issues, the evidence submitted by the parties. Id. Whether a court has subject matter jurisdiction is a legal question, which we review de novo. State ex rel. State Dep=t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A trial court must grant a plea to the jurisdiction when the pleadings do not state a cause of action upon which the trial court has jurisdiction. Sykes, 136 S.W.3d at 639. Discussion In three issues, Galveston County contends that Nichols= pleadings do not state a cause of action over which the trial court has jurisdiction. In her petition and in her response to the plea, Nichols asserted that this case falls under the Tort Claims Act=s waiver of immunity because Galveston County personnel misused a fax machine to transmit her personal, private information to parties who were not supposed to receive such information, citing Texas Family Code section 85.042. Tex. Fam. Code Ann. ' 85.042 (Vernon Supp. 2006).[1] In her petition, she alleged only that the use of the fax machine in this manner was a misuse of tangible personal property under section 101.021(2). In her response to the plea, she alleges that her injuries resulted from use of motor-driven equipment, i.e. the fax machine, under section 101.021(1). In order to dispose of this appeal, we need not determine whether a fax machine constitutes motor-driven equipment under the Tort Claims Act. Similarly, we see no meaningful distinctions in this case regarding whether Nichols= claim falls under section 101.021(1) or 101.021(2). The following analysis applies whether Nichols contends her injuries arose from the operation or use of motor‑driven equipment or were caused by a condition or use of tangible personal property. See Whitley, 104 S.W.3d at 543 (stating that the causation requirement is the same whether a claim is based on use of motor-driven equipment or use of tangible property). Before immunity can be found to have been waived in a case involving the use of motor-driven equipment, a nexus must be established between the use of the equipment and the plaintiff=s injuries. Id. This nexus requires more than just that the equipment was in some way involved. Id. Immunity is only waived if the use or misuse of motor-driven equipment actually caused the injury. Tex. Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). Stated conversely, the equipment does not cause injury if it does no more than furnish a condition which makes the injury possible. Whitley, 104 S.W.3d at 543 (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)). The same principles apply in cases involving the use of tangible property. Bossley, 968 S.W.2d at 343. Several courts have held that when a plaintiff claims harm from the transmittal of information, no waiver of governmental immunity results simply because government personnel used some type of equipment in transmitting the information. See, e.g., Axtell v. Univ. of Tex. at Austin, 69 S.W.3d 261, 266-67 (Tex. App.CAustin 2002, no pet.); City of San Antonio v. Hernandez, 53 S.W.3d 404, 409-10 (Tex. App.CSan Antonio 2001, pet. denied); City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex. App.CCorpus Christi 2000, no pet.); Sawyer v. Tex. Dep=t of Criminal Justice, 983 S.W.2d 310, 312 (Tex. App.CHouston [1st Dist.] 1998, pet. denied). The Axtell and Sawyer opinions are particularly instructive here. In Axtell, a college athlete sued the University of Texas under the Tort Claims Act, claiming that his academic records were improperly faxed to several radio stations, which then broadcast the information. 69 S.W.3d at 264. The court held that it was the fact that the information was released that allegedly caused Axtell=s damages, not the means or method by which the information was transmitted; thus, there was no waiver of immunity. Id. at 266. The court further explained that the fax machine simply facilitated the communication of information, and therefore its use did not proximately cause Axtell=s damages. Id. Axtell would have suffered the same injury had the information been transmitted by other means: by telephone, by mail, or by hand delivery. Id. In Sawyer, an inmate of the Texas Department of Corrections alleged that he suffered emotional distress when he received a computer printout listing an incorrect date for his parole review. 983 S.W.2d at 311. In determining that neither use of the computer nor of the printout itself waived immunity under the Tort Claims Act, the court explained that A[i]nformation . . . remains information, whether it is transmitted by electronic equipment or by word of mouth. The medium used to communicate information does not alter its intangible nature.@ Id. at 312. Nichols argues that Axtell and Sawyer are distinguishable from the present case because here the Galveston County personnel=s actions violated section 85.042 of the Family Code. Tex. Fam. Code Ann. ' 85.042 (providing guidelines for the delivery of protective orders from court personnel to law enforcement officers and others). Although reference to section 85.042 may or may not explain why the transmittal of the protective order and related affidavit was an impropriety on the part of Galveston County personnel, it neither transforms the information into tangible property nor creates proximate causation in the use of the fax machine where causation does not otherwise exist. See Sawyer, 983 S.W.2d at 312. In summary, it was the alleged misuse of information that caused Nichols= claimed damages, not misuse of the fax machine. Had the information been transmitted by other means (by mail, by email, by telephone, in person, or even via automobile), she still would have been damaged in the exact same way. Accordingly, Nichols has failed to state a cause of action falling under the Tort Claims Act=s waiver of immunity. The trial court erred in denying Galveston County=s plea to the jurisdiction. Galveston County=s three issues are sustained. Lastly, we must determine whether to remand the case to give Nichols an opportunity to replead. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kelso v. Gonzales Healthcare Sys., 136 S.W.3d 377, 383 (Tex. App.CCorpus Christi 2004, no pet.). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. In her petition, Nichols alleges damages only from the transmittal of information. No amendment of her pleadings could convert this claim into an actionable cause against Galveston County. Accordingly, an opportunity to amend would be unavailing. We reverse the trial court=s order denying Galveston County=s plea to the jurisdiction and dismiss Nichols= cause of action for lack of subject matter jurisdiction. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed October 12, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Seymore. [1] Nichols acknowledges that section 85.042 itself, which governs the delivery of protective orders from court personnel to law enforcement officers and others, contains no waiver of immunity. Tex. Fam. Code Ann. ' 85.042.