Page 35 - November December 2019 TPA Journal

we agree that they are “in connection with” each conscious indifference and thus no basis to negate
other. the statutory immunity. We accordingly reverse the
court of appeals’ judgment and render judgment
As relevant in this case, the Act waives the County’s that Bonner take nothing.
governmental immunity for personal injuries caused
by a condition or use of tangible personal property, Tarrant Co. v. Bonner, Tex. Sup. Court., No. 18-
th
authorizing liability to the same extent as though the 0431, May 24 , 2019.
County were a private person. Bonner pled a
negligence claim under the Act’s waiver of
immunity by alleging the condition or use of the SEARCH & SEIZURE – VEHICLE SEARCH
damaged chair as the cause of his personal injury:
– DURATION OF DETENTION
its condition because the County failed to warn him
about the chair’s dangerous condition; its use A federal grand jury returned a three-count
because Bonner was directed or allowed to use the indictment charging Rafael Tello with transporting
chair during his medical treatment. Contrary to the an illegal alien within the United States by means of
court of appeals’ analysis, Bonner does not assert a motor vehicle. At an immigration checkpoint, the
that the County’s act of storing the chair was a aliens were found hidden in a storage compartment
breach of any duty of care. But it would not matter in the sleeper area of the tractor-trailer that Tello
even if Bonner raised that allegation. As the was driving. The case proceeded to trial on the first
Attorney General points out, a claim based on the two counts. Midway through the trial, after the two
storage of the damaged chair in the multipurpose Border Patrol agents had testified, Tello moved to
room four days before Bonner’s accident is not a suppress the evidence found during the
claim for which governmental immunity is waived immigration-checkpoint stop. The district court
under the Tort Claims Act, which “is the only, albeit denied the motion and the jury found Tello guilty
limited, avenue for common-law recovery against of both counts. Tello was sentenced to concurrent
the government.” terms of 27 months of imprisonment and two years
of supervised release. For the reasons below, we
…
AFFIRM.
The statutes, however, only immunize the County
Shortly before 1:00 a.m. on August 1, 2017, a
from liability to the extent its corporate actions or
tractor-trailer entered the primary inspection lane at
omissions were not performed with conscious the U.S. Border Patrol checkpoint south of
indifference or reckless disregard for the safety of Falfurrias, Texas. Agent Villanueva was on duty in
others. The County’s summary-judgment motion
the primary inspection lane. A Border Patrol service
was accordingly based on immunity from liability,
canine and its handler were working with him.
not immunity from suit. The distinction is
Tello was driving the tractor-trailer. Agent
significant because immunity from suit implicates Villanueva’s first question was: “[A]re you a citizen
jurisdictional concerns whereas immunity from – are you a United States citizen?” He replied that
liability is an affirmative defense that must be pled
he was a naturalized citizen. Agent Villanueva was
and proven.
satisfied with this answer so he did not ask for proof
… of citizenship. Agent Villanueva next asked Tello
what he was hauling in the trailer. He asked this
We, however, agree with the trial court that the question to give the Border Patrol service canine
statutes apply here to bar the County’s liability. We more time to conduct a canine sniff of the tractor-
further agree with the trial court’s summary trailer: Because at that point, kind of I looked –
judgment which determined that there was no because usually when I start [questioning], I also
evidence or fact issue regarding the County’s keep in mind that I have the K9 handler working

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