Affirming a Uvalde County trial court, the San Antonio Court of Appeals has held that survivors of the Robb Elementary shooting in Uvalde could not allege jurisdictional facts to establish a waiver of sovereign immunity under the Texas Tort Claims Act.
Barrera, et al. v. Uvalde County and the Texas Department of Public Safety (No. 04-24-00461-CV; February 26, 2026) arose from the mass shooting at Robb Elementary in Uvalde. Plaintiffs, five teachers and 24 students who survived the shooting, sued Uvalde ISD, the City of Uvalde, Uvalde County, DPS, and the Texas Rangers under the Texas Tort Claims Act. UCISD, Uvalde County, and DPS/Texas Rangers filed pleas to the jurisdiction. The trial court granted the pleas. Plaintiffs appealed.
In an opinion by Justice Valenzuela, the court of appeals affirmed. As a threshold matter, the court held that the City, which didn’t appear in the case, was not a party to the appeal. Plaintiffs also abandoned their claim against the Texas Rangers and UCISD. Consequently, the appeal concerned only DPS and Uvalde County. Plaintiffs argued that they pleaded a valid waiver of Defendants’ immunity by alleging that Defendants negligently failed to properly implement an active-shooter policy and that negligence delayed Plaintiffs’ rescue. But, as the court observed, “[t]here is no independent waiver of immunity for a claim of negligent implementation of policy” (citations omitted). Plaintiffs tried to establish waiver “by tying their claims to the use or condition of tangible personal property” under § 101.021(2), CPRC (primarily focused on interior and exterior school doors and equipment used by law enforcement during the siege). This approach didn’t fly, however, because Plaintiffs’ claimed that Defendants either didn’t have the right property or didn’t use the property they had. In other words, “non-use of property will not establish waiver of immunity under the TTCA” (citations omitted).
Plaintiffs further alleged that inadequate police radios caused a “breakdown in communication,” delaying their rescue. But Plaintiffs didn’t allege that defective radios posed a hazard in their intended or ordinary use, merely that they prevented Defendants from using the radios for their intended purpose. The problem here was that “the radios were not furnished to [Plaintiffs] for their use,” so, again, their claim of non-use didn’t establish waiver. Even if the court accepted the argument that the “use” of the radios caused the injury, “the allegations in the petition asserted that the radios furnished one of several conditions that made the delay possible, not that the condition of the radios actually caused the delay.” Plaintiffs also failed to allege that properly functioning radios would have made any difference. Consequently, Plaintiffs couldn’t show that the radios were “the instrumentality of the harm” or that they were “a substantial factor in causing the injury and without which the injury would not have occurred” (citation omitted).
The court was clearly chagrined that there was no remedy for Plaintiffs in this case, but “as judges, we are bound by the maxim that ‘the waiver of governmental immunity is a matter addressed to the Legislature, not the courts.” As current written, the TTCA immunized Defendants from suit “unless [Plaintiffs] alleged that their injuries were proximately caused by the use or condition of tangible personal property.” The court further rejected Plaintiffs’ request to amend their pleadings, finding that the record didn’t indicate any way that Plaintiffs could do that to cure the jurisdictional defects. It pointed out that Plaintiffs had already amended once when faced with Defendants’ pleas to the jurisdiction, and they couldn’t fix the problem the first time. That court thus affirmed the trial court and dismissed the case.
