Opinion
No. 11-04-00302-CV
Opinion filed November 10, 2005. NOT DESIGNATED FOR PUBLICATION. Tex.R.App.P. 47.2(a).
On Appeal from the 29th District Court, Palo Pinto County, Texas, Trial Court Cause No. C40060.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is an appeal from an order dismissing with prejudice all causes of action asserted in this case by Stith Reece Edmondson, III, a pro se indigent inmate. Edmondson sued the Palo Pinto County District Attorney's Office, Jerry Ray, and James Roberts, alleging that the defendants had committed a tort by failing to preserve evidence and that they had negligently used tangible property belonging to the State — a photograph — during his criminal trial. Edmondson asserted that the negligent use of the false and misleading photograph caused him injury. After the defendants filed various motions to dismiss, the trial court held a hearing and dismissed the causes of action for want of jurisdiction. We affirm.
The record shows that the motion to dismiss for want of jurisdiction was based upon sovereign and official immunity and the lack of waiver of that immunity by the Texas Tort Claims Act, TEX. CIV. PRAC. REM. CODE ANN. ch. 101 (Vernon 2005 Supp. 2005). Edmondson's only contention in his sole issue on appeal is that the order dismissing his causes of action should have been made "without prejudice," rather than "with prejudice." Edmondson cites cases such as Bell v. State Department of Highways and Public Transportation, 945 S.W.2d 292 (Tex.App.-Houston [1st Dist.] 1997, writ den'd), and prays that we reform the judgment to so reflect.
Although the cases relied upon by Edmondson do support his contention, those cases are no longer good law. The Texas Supreme Court, rejecting the holding in Bell, resolved a dispute among the courts of appeals when it decided Harris County v. Sykes, 136 S.W.3d 635, 638-40 (Tex. 2004). In Sykes, the supreme court held that a dismissal with prejudice is the proper result when, after the governmental entity's filing of a plea to the jurisdiction, the plaintiff has been provided with a reasonable opportunity to amend his pleadings but has still failed to allege facts that would constitute a waiver of immunity. Harris County v. Sykes, supra at 639. The record in this case shows that Edmondson had ample opportunity to amend his pleadings after the filing of the motion to dismiss for want of jurisdiction. Consequently, we hold that the trial court did not err in dismissing Edmondson's causes of action "with prejudice." The sole issue on appeal is overruled.
The judgment of the trial court is affirmed.