Page 34 - November December 2019 TPA Journal

for damages arising from action or inaction in immunity. This distinction is largely insignificant
connection with an inmate activity, including here because under the Texas Tort Claims Act a
treatment activities, if the action or inaction was governmental entity cannot be liable for the actions
performed in an official capacity and was not or inactions of its employees if the employees are
performed with conscious indifference: not liable for any reason, including their own
immunity.
An individual listed in Subsection (c) of this article
and the governmental entity that the individual The statutes thus provide immunity from liability to
serves as an officer or employee are not liable for identified governmental individuals and entities for
damages arising from an act or failure to act by the damages that arise from their negligent acts or
individual or governmental entity in connection omissions in connection with covered programs and
with a community service program or work activities. Bonner does not dispute that his lawsuit
program established under this chapter or in concerns a covered activity. Nor does he deny that
connection with an inmate, offender, or releasee his allegations of negligence involve individuals
programmatic or nonprogrammatic activity, and entities named in these statutes. Rather, Bonner
including work, educational, and treatment contends that the statutes do not apply because the
activities, if the act or failure to act: requisite connection between his allegations and the
covered activity does not exist. He specifically
(1) was performed pursuant to a court order or was focuses on the County’s alleged omissions—its
otherwise performed in an official capacity; and failure to mark the chair as broken or remove it from

the jail—arguing that the damaged chair was not in
(2) was not performed with conscious indifference
for the safety of others. the multipurpose room as part of his medical
treatment but rather was there for another purpose.
Section 497.096 similarly provides that county and Bonner concludes that, as to these omissions, the
sheriff’s department employees are not liable for relevant connection does not exist, and the statutes
damages arising from action or inaction in do not apply.
connection with an inmate or offender treatment
activity if the action or inaction was not intentional, …
wilfully negligent or performed with conscious The County argues that a legitimate connection
indifference or reckless disregard: exists between its alleged acts and omissions and

Bonner’s medical treatment because Bonner would
An employee [of the sheriff’s office or the county
among others] . . . is not liable for damages arising not have a claim for damages but for that
from an act or failure to act in connection with connection. For example, the alleged omissions—
the failure to remove the chair or warn of its
community service performed by an inmate
condition—were legally insignificant until they
imprisoned in a facility operated by the department
intersected with Bonner’s medical treatment. Had
or in connection with an inmate or offender
programmatic or nonprogrammatic activity, these omissions not continued through to the time of
including work, community service, educational, Bonner’s treatment, Bonner would have no claim
for damages. In short, the omissions only lead to
and treatment activities, if the act or failure to act
the alleged damages because of their connection to
was not intentional, wilfully or wantonly negligent,
the medical visit. Similarly, Bonner’s negligence
or performed with conscious indifference or
reckless disregard for the safety of others. theory based on the continued use of the chair after
its defective condition was known necessarily
In contrast to article 42.20, which explicitly applies connects to the occasion of Bonner’s medical
to individuals and the governmental entities they encounter. Because Bonner’s damages claim rests
serve, section 497.096 speaks only to individual on the County’s alleged negligent acts and
omissions intersecting with his medical treatment,

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