Summary
stating that the Texas Penal Code does not create private causes of action
Summary of this case from Slaven v. LivingstonOpinion
No. 11-16-00169-CV
06-07-2018
ROBERT C. MORRIS, Appellant v. JENNIFER S. COZBY, RAUL S. RENTERIA, AND ISRAEL COSTA, Appellees
On Appeal from the 106th District Court Dawson County, Texas
Trial Court Cause No. 15-09-19655
MEMORANDUM OPINION
Robert C. Morris appeals the trial court's dismissal of his suit against Appellees, Jennifer S. Cozby, Raul S. Renteria, and Israel Costa. Appellant presents eight issues on appeal. We affirm.
Background Facts
Appellant is an inmate housed in the Texas Department of Criminal Justice (TDCJ). Appellees are officials with TDCJ. Appellant sued Appellees, alleging they were responsible for various items of his personal property either being taken or lost following a lockdown. Specifically, Appellant alleged that the following items of his property were missing: two bags of sunflower seed kernels, two bags of instant rice, three packs of vanilla cream cookies, four photo albums, and envelopes containing 310 "erotic-type" photos purchased from outside vendors.
After approximately two months passed after Appellant filed suit, he filed a Motion for Judgment by Default. He alleged in the motion that he had obtained service of citation upon Appellees but that they had not timely filed an answer. In reply, Appellees filed an answer to Appellant's petition and a response to his Motion for Judgment by Default. Appellees alleged in the response that Appellant had not properly served them with his petition. Appellees additionally alleged that Appellant had not complied with the statutory notice requirements contained in Section 39.001 of the Texas Civil Practice and Remedies Code for obtaining a default judgment. TEX. CIV. PRAC. & REM. CODE ANN. § 39.001 (West 2015). Afterwards, the trial court entered a written order denying Appellant's Motion for Default Judgment.
Appellees subsequently filed a motion to dismiss Appellant's suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. They alleged that dismissal was warranted under Section 14.003 because Appellant failed to state a nonfrivolous claim. CIV. PRAC. & REM. § 14.003(a)(2) (West 2017). Without holding a hearing, the trial court signed an order dismissing Appellant's suit on the basis that it was "frivolous in its entirety."
Analysis
In his first issue, Appellant contends that the legislature lacked authority to enact Chapters 14 and 39 of the Texas Civil Practice and Remedies Code, thereby making them invalid. In reliance upon this contention, Appellant asserts that the trial court erred in denying his request for a default judgment under Chapter 39 and dismissing his claim under Chapter 14.
Section 39.001 requires that the attorney general be given notice of a party's intent to take a default judgment against another party in a civil case for which Chapter 104 of the Texas Civil Practice and Remedies Code authorizes representation by the attorney general. CIV. PRAC. & REM. § 39.001. Under Chapter 104, the attorney general must defend state employees in lawsuits alleging damages based on certain acts or omissions by those employees. Id. §§ 104.001, 104.002, 104.004 (West 2011 & Supp. 2017). There is no dispute that Appellees and this lawsuit fall within the parameters of Chapter 104.
Inmate litigation is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. Chapter 14 applies when, as here, an inmate files suit in a district court and files an unsworn declaration of indigency. CIV. PRAC. & REM. § 14.002; see Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.). Under Chapter 14, a trial court may dismiss an inmate's lawsuit for failing to comply with the chapter's procedural requirements; it may also dismiss a lawsuit that is malicious or frivolous. CIV. PRAC. & REM. § 14.003; Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Appellant contends that the legislature relinquished all of its rulemaking power to the Texas Supreme Court in 1939. Thus, Appellant asserts that the supreme court has had exclusive rulemaking authority since 1939 and that the legislature lacked the authority to enact procedural statutes like Chapters 14 and 39 after 1939. We disagree.
We note at the outset that Appellant previously presented a similar legal challenge to Chapters 14 and 39 in Morris v. Milligan, No. 12-14-00332-CV, 2016 WL 5845827 (Tex. App.—Tyler Sept. 30, 2016, pet. denied) (mem. op.). The Tyler Court of Appeals conducted a detailed historical analysis of the legislature's delegation of rulemaking authority to the supreme court. Id. at *1-3. The court noted that the supreme court has determined that its rulemaking power is a limited power that is subordinate to that of the legislature. Id. at *2 (citing Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex. 1971); Gov't Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963)). The Tyler Court of Appeals also noted that, while the legislature has relinquished its rulemaking authority, it retained the power to enact procedural statutes. Id. (citing Few, 463 S.W.2d at 425).
The Tyler Court of Appeals concluded that the Texas Supreme Court does not have exclusive authority over court procedural matters. Id. Consequently, the court overruled Appellant's legal challenge and held that the trial court did not err by applying Chapters 14 and 39. Id. at *2-3. We agree with the analysis of the Tyler Court of Appeals for the reasons stated in its opinion. Accordingly, we overrule Appellant's first issue.
Appellant complains in his second issue that TDCJ prevented him from complying with the requirement of Section 39.001. This statute requires a party seeking a default judgment to provide the attorney general with notice by certified mail, return receipt requested, not later than ten days before the entry of the default judgment. CIV. PRAC. & REM. § 39.001. Appellant asserts that TDCJ's rules for inmate mail prevented him from complying with the certified mail requirement. Appellant also asserts that he should not have had to comply with Section 39.001 because Appellees had a duty to provide a copy of the suit papers to the attorney general under Section 104.005(2) of the Texas Civil Practice and Remedies Code.
We note our disagreement with Appellant's interpretation of Section 104.005 for the reasons expressed by the Tyler Court of Appeals in Morris, 2016 WL 5845827, at *3.
Appellant did not present these complaints to the trial court, and he did not seek relief from the trial court from the requirement of Section 39.001. To preserve a complaint for appeal, the record must show that the complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion—either expressly or implicitly—or refused to rule and the party objected to the trial court's refusal. TEX. R. APP. P. 33.1(a). A complaint raised on appeal must be the same as the complaint presented to the trial court. See Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex. App.—Corpus Christi 2004, pet. denied). Accordingly, Appellant has not preserved these complaints for appellate review. We overrule Appellant's second issue.
In his third issue, Appellant asserts that the trial court showed bias in favor of Appellees that denied Appellant "fair and equal access to the courts and due process of law." He complains that the trial court clerk's office charged him for copies while providing a free copy of documents to Appellees. However, Appellant does not identify that he presented this complaint to the trial court seeking relief from the actions of the clerk's office. Accordingly, Appellant has not preserved this complaint for appellate review. We overrule Appellant's third issue.
Appellant asserts in his fourth issue that the trial court abused its discretion by denying his request for default judgment. The denial of a motion for default judgment is reviewable in an appeal from a final judgment or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We review the denial of a request for default judgment under an abuse of discretion standard. Id.
Appellant contends that he was entitled to a default judgment because Appellees failed to timely file an answer after being served with suit papers, that he was excused from complying with the requirements of Section 39.001 for the reasons listed above, and that Appellees cannot rely upon Section 39.001. As noted previously, Appellant did not present the trial court with his contentions that he was excused from complying with Section 39.001 or that Appellees were not entitled to rely upon this statute. Accordingly, these complaints are not preserved for appellate review.
Section 39.001 provides that notice of an intent to take a default judgment against certain parties defended by the attorney general "shall be mailed" to the attorney general by certified mail, return receipt requested. CIV. PRAC. & REM. § 39.001 (emphasis added). The word "shall" in a statute is generally understood as a mandatory term that creates a duty or condition. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing TEX. GOV'T CODE ANN. § 311.016(2) (West 2013)). Furthermore, Section 39.002 provides that the failure to give the notice required by Section 39.001 will result in the default judgment being set aside. CIV. PRAC. & REM. § 39.002. Accordingly, the trial court did not abuse its discretion in denying Appellant's motion for default judgment because Appellant did not comply with the mandatory requirement of Section 39.001 to send the notice to the attorney general by certified mail. Appellant's fourth issue is overruled.
In his fifth issue, Appellant contends that the trial court abused its discretion in failing to timely rule on his motion to compel discovery and impose sanctions. On March 18, 2016, Appellant filed copies of interrogatories and requests for production that he purportedly served on Appellees in January 2016. He also filed a motion entitled "Motion to Compel Discovery and Sanctions Against Defendants" on March 18, 2016. However, the record does not contain a request by Appellant for the trial court to conduct a hearing on the motion to compel. Appellant's failure to request a hearing on his motion or otherwise present it to the trial court for consideration results in his discovery complaint not being preserved for appellate review. See Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75, 84 (Tex. App.—Texarkana 2008, pet. denied) (holding complaint relating to motion to compel not preserved where party failed to request hearing). We overrule Appellant's fifth issue.
Appellant asserts in his sixth issue that the trial court abused its discretion in dismissing his suit on the basis of official immunity because Appellees failed to establish each element of the defense. Appellees asserted in their motion to dismiss that they had official immunity from Appellant's claims. Appellant asserts in his seventh issue that the trial court abused its discretion by dismissing his suit. We will address these issues together because they both address the dismissal of Appellant's suit.
The legislature enacted Chapter 14 to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates because these suits consume many valuable judicial resources with little offsetting benefits. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no pet.) (citing Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied)). Under Chapter 14, a trial court may dismiss a claim by an inmate if it finds the claim to be frivolous or malicious. CIV. PRAC. & REM. § 14.003(a)(2); see Comeaux v. Tex. Dep't of Criminal Justice, 193 S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A claim is frivolous if it has no basis in law or fact. Comeaux, 193 S.W.3d at 86.
We review a Chapter 14 dismissal for an abuse of discretion. Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When an inmate's lawsuit is dismissed as frivolous for having no basis in law or in fact but no fact hearing is held, our review focuses on whether the inmate's lawsuit has an arguable basis in law. Calton v. Schiller, 498 S.W.3d 247, 253 (Tex. App.—Texarkana 2016, pet. denied). "While a chapter 14 dismissal is reviewed under an abuse of discretion, the issue as to whether a claim has an arguable basis in law is a legal question that we review de novo." Hamilton, 319 S.W.3d at 809. "We will affirm the dismissal if it was proper under any legal theory." Id. (citing Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990) (per curiam)). "In conducting our review, we take as true the factual allegations in an inmate's petition and review the types of relief and causes of action set out therein to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief." Id. "A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory." Id.
Appellant alleged that Cozby, in her capacity as an assistant warden, gave an order for Appellant's unit to be "locked down" and ordered all offenders to pack up their property. He alleged that Renteria, in his capacity as a captain, acted upon Cozby's orders by leading a group of TDCJ officers to order all offenders in Appellant's wing to pack up their property. Appellant further alleged that Renteria told the offenders that this property was not being confiscated but, rather, was going to be inventoried and then returned to them and that no other offenders would have access to it. Appellant alleged that Costa was the "[a]cting property officer."
Under a section of Appellant's petition entitled "Legal Claims," he asserted that Cozby gave an order that violated the Fourth Amendment of the U.S. Constitution and Article I, section 9 of the Texas Constitution against unreasonable seizure and that, as a result, her actions violated provisions of the Texas Penal Code. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Appellant also alleged that Cozby was liable under the Texas Theft Liability Act. See CIV. PRAC. & REM. §§ 134.001-.005. Appellant additionally alleged that Cozby violated TDCJ policy pertaining to the confiscation of an offender's property.
Appellant alleged that, because Renteria acted on orders issued by Cozby, Renteria also violated Appellant's rights against unreasonable seizure of his property under the Fourth Amendment and the Texas Constitution. Appellant also asserted that Renteria's actions violated provisions of the Texas Penal Code and that he was liable under the Texas Theft Liability Act. Appellant additionally alleged that Renteria violated TDCJ policy pertaining to the confiscation of an offender's property.
With respect to Costa, Appellant alleged that he was in control and possession of Appellant's property "when [it] became stolen." Appellant alleged that Costa failed to ensure that Appellant's property was kept in a secure location. Appellant also alleged that Costa received Appellant's property knowing that it had been taken in violation of Appellant's constitutional rights. Appellant asserted that Costa was liable under the Texas Theft Liability Act for violating Appellant's constitutional rights. Appellant additionally alleged that Costa violated TDCJ policy pertaining to the confiscation of an offender's property.
In summary, Appellant asserted the following claims against Appellees: (1) a violation of his constitutional rights against the unreasonable seizure of his property; (2) a violation of provisions of the Texas Penal Code; (3) liability under the Texas Theft Liability Act; and (4) a violation of TDCJ policy.
Constitutional Claims
Both the U.S. and Texas constitutions protect against unreasonable searches and seizures. There is no substantive difference in the protections afforded by the Fourth Amendment and Article I, section 9 of the Texas Constitution. Johnson v. State, 912 S.W.2d 227, 232 (Tex. Crim. App. 1995). A search of an inmate's cell does not implicate the Fourth Amendment. Block v. Rutherford, 468 U.S. 576, 589-91 (1984) (prison officials, not the courts, should be empowered to make the difficult judgments that reconcile conflicting claims affecting prison security and inmate welfare, including when and how cell searches should occur). Accordingly, Appellant has no arguable basis in law for a claim based upon an alleged violation of the Fourth Amendment or Article I, section 9 of the Texas Constitution.
Furthermore, the Due Process Clause is not violated when a prison official either negligently or intentionally deprives an inmate of property. See Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex. App.—Tyler 1996, writ denied) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986); Hudson v. Palmer, 468 U.S. 517, 535 (1984)); see U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19. "[D]eprivations of property caused by the misconduct of state officials do not infringe constitutional due process provided adequate state post-deprivation remedies exist." Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994). Section 501.007 of the Texas Government Code provides an administrative remedy to inmates whose property has been lost or damaged. TEX. GOV'T CODE ANN. § 501.007 (West 2012); see Hamilton, 319 S.W.3d at 814 (Because they have an adequate post-deprivation remedy, inmates in Texas have no arguable basis in law for asserting a due process claim for the loss or destruction of their property by a prison official.). Accordingly, Appellant's allegation that his property was lost does not give rise to a due process claim. See Murphy, 26 F.3d at 543-44; see also Aguilar, 923 S.W.2d at 743-44.
Texas Penal Code
The Texas Penal Code does not create a private cause of action. Hamilton, 319 S.W.3d at 813 (citing Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex. 2004); Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)). Accordingly, to the extent Appellant brings claims based on Appellees' alleged violation of the Texas Penal Code, they are frivolous as lacking an arguable basis in law.
Texas Theft Liability Act
A person who commits theft is civilly liable under the Texas Theft Liability Act for the damages resulting from the theft. Beaumont v. Basham, 205 S.W.3d 608, 618 (Tex. App.—Waco 2006, pet. denied) (citing CIV. PRAC. & REM. § 134.003(a)). The Act defines "theft" by incorporating portions of the Texas Penal Code by reference. See CIV. PRAC. & REM. § 134.002(2) (defining "theft" by incorporating portions of the Texas Penal Code by reference). As is relevant here, a person commits theft when he appropriates property without the owner's effective consent and with the intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a), (b)(1) (West Supp. 2017).
Appellant has not alleged that any of the Appellees appropriated his property. Appellant alleged that Cozby and Renteria either made or carried out orders for the search of Appellant's cell. However, there is no allegation that they ever came into contact with Appellant's property items. With respect to Costa, Appellant does not allege that Costa stole his property. At best, Appellant alleges that Costa failed to protect his property from other offenders. In the absence of an allegation that Appellees actually appropriated Appellant's property, his claim under the Texas Theft Liability Act has no arguable basis in law. See Reece v. Johnson, No. 10-12-00077-CV, 2013 WL 4511930, *2-3 (Tex. App.—Waco Aug. 22, 2013, no pet.) (mem. op.) (dealing with the alleged theft of personal property by correctional officers).
TDCJ Policy
Appellant additionally claims that Appellees failed to comply with various TDCJ policies regarding the seizure of an offender's property. "A prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met." Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). As noted previously, Section 501.007 of the Texas Government Code authorizes discretionary payments to inmates for the destruction of their property by prison officials. Section 501.008 requires TDCJ to develop and maintain an administrative system for inmate grievances. See GOV'T § 501.008. These sections of the Government Code do not provide an independent basis for an inmate's civil lawsuit. See Spurlock v. Schroedter, 88 S.W.3d 733, 737 (Tex. App.—Corpus Christi 2002, no pet.). Accordingly, Appellant's claims for violations of TDCJ policy have no arguable basis in law.
Appellant has not stated a cause of action that has an arguable basis in law. Accordingly, the trial court did not err in dismissing Appellant's suit under Section 14.003(a)(2) for being frivolous. We overrule Appellant's seventh issue. We do not reach Appellant's sixth issue because our disposition of the seventh issue is dispositive of it.
Finally, Appellant complains in his eighth issue that the trial court did not make its own findings of fact and conclusions of law and that it erred by requesting Appellees to prepare findings of fact and conclusions of law. However, findings of fact and conclusions of law were not appropriate in this case because the trial court dismissed Appellant's suit without holding a fact hearing. Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 655 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (The rules for findings of fact and conclusions of law do not apply when a court dismisses a case under Chapter 14 without holding a fact hearing.). Moreover, the process employed by the trial court was not improper. As noted in Grossnickle v. Grossnickle, 935 S.W.2d 830, 837 n.1 (Tex. App.—Texarkana 1996, writ denied):
[The preparation of draft findings of fact and conclusions of law by counsel for the opposing party] is a standard practice. The prevailing party at a trial court is usually instructed to prepare findings of fact and conclusions of law and a proposed judgment based upon the trial court's rulings when appropriately requested. This is not an impropriety, because the judge is not bound to accept these drafts as submitted, but may make changes or completely rewrite the proposed document. It has been described as clerical in nature, appropriate, and not a ground for error.We overrule Appellant's eighth issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE June 7, 2018 Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.