Harris v. Howard County

Supreme Court of Texas · 2018 · Torts

547 S.W.3d 609 (2018)

Updated July 19, 2026

tortsgovernmental immunityTexas Tort Claims Actsovereign immunityplea to the jurisdictionuse of tangible personal propertynon-usemisuse of information

Facts

Kenneth Caplan, a Harris County deputy constable, shot Lori Annab in a road-rage incident while off duty, using his personal firearm from his personal vehicle. Annab sued Harris County, alleging the county used tangible personal property by hiring Caplan and repeatedly approving, authorizing, and qualifying him to possess and use the Glock firearm. She also relied on the county's employment and supervisory decisions regarding Caplan's troubled background and conduct. It was undisputed that the county did not issue the firearm to Caplan and that he owned it independently of his employment.

Issue

Did Annab's allegations establish a waiver of Harris County's governmental immunity under the Texas Tort Claims Act by alleging that the county's use of tangible personal property caused her injuries? If not, should the case nonetheless be remanded for repleading and additional discovery?

Rule

Under the Texas Tort Claims Act, immunity is waived for personal injury caused by a condition or use of tangible personal property only when the governmental unit itself uses the property. "Use" means to put or bring the property into action or service or employ it for a given purpose; it does not include merely making property available, authorizing another to use it, furnishing access to it, or using or failing to use information. Mere nonuse of property also does not trigger the waiver.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Dallas, Omar Ruiz was injured when an off-duty county jailer, Seth Nolan, struck him with a personally owned baton during a dispute outside a grocery store. Omar sues the county, alleging immunity is waived because the county had certified Seth to carry that baton while working courthouse security.

Is the county's immunity most likely waived under the Texas Tort Claims Act on these allegations?

Explanation. The majority rule is that the governmental unit itself must use the tangible personal property. "Use" means to put or bring the property into action or service or employ it for a purpose. Merely authorizing, approving, or qualifying an employee to possess or use his own property is not governmental use, even if the object is tangible personal property.