Opinion
NUMBER 13-16-00428-CV
08-24-2017
SALVADOR ZAVALA, Appellant, v. MARKESE REO, C. FURR, E.U. ONWUNSURUAUA, AND R. MENCHACA Appellees.
On appeal from the 343rd District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Contreras
Appellant, Salvador Zavala, an inmate proceeding pro se and in forma pauperis, appeals from an order dismissing his lawsuit against four employees of the Texas Department of Criminal Justice, Correctional Institution Division (TDCJ), Markese Reo, C. Furr, E. U. Onwunsuruaua, and R. Menchaca, as frivolous. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West, Westlaw through Ch. 49, 2017 R.S) (Inmate Litigation statute). Appellant did not sue the TDCJ. By a single issue, appellant contends the trial court erred in dismissing his lawsuit as frivolous. We affirm.
Appellant's petition alleged that appellees violated the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.001-.005 (West, Westlaw through Ch. 49, 2017 R.S.). However, because appellant filed a declaration of indigence, the requirements of chapter 14 of the Texas Civil Practice and Remedies Code govern his lawsuit. See Lopez v. Serna, 414 S.W.3d 890, 896 (Tex. App.—San Antonio 2013, no pet.) (applying chapter 14 to inmate proceeding asserting claims under Theft Liability Act and citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.001 (West, Westlaw through Ch. 49, 2017 R.S.)).
I. BACKGROUND
Appellant filed his original petition with the district court asserting that appellees stole family photographs from his locker and destroyed them. Appellant also asserted that appellees committed fraud by falsely claiming that their actions were in accordance with TDCJ policy. In response, the Office of the Attorney General (OAG) filed an amicus curiae advisory, in which it asserted that, based on appellant's grievances and grievance responses, appellee Reo confiscated 110 photographs from appellant due to questionable ownership of the photographs. Appellant failed to provide proof of ownership of the photographs within seven days, which led to destruction of the property. The advisory argued that appellant's lawsuit should be dismissed because: (1) appellant failed to meet the procedural requirements of chapter 14 because his trust account reflected that he received monthly deposits of $100 from relatives and friends and, therefore, was not indigent; (2) his claims have no basis in law because the photographs were confiscated in accordance with TDCJ policy and appellant's fraud claim fails because he did not identify a specific false statement or a specific person who made a false statement; and (3) appellees are immune from suit, in both their official and individual capacities. The trial court dismissed appellant's claims "AS FRIVOLOUS for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code." (emphasis in original).
II. STANDARD OF REVIEW AND APPLICABLE LAW
Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See id. Appellant's petition alleged that appellees violated the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001-.005 (West, Westlaw through Ch. 49, 2017 R.S.). However, because appellant filed a declaration of indigence, the requirements of chapter 14 of the Texas Civil Practice and Remedies Code govern his lawsuit. See Lopez v. Serna, 414 S.W.3d 890, 896 (Tex. App.—San Antonio 2013, no pet.) (applying chapter 14 to inmate proceeding asserting claims under Theft Liability Act and citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.001 (West, Westlaw through Ch. 49, 2017 R.S.)).
A trial court may dismiss a suit under chapter 14 if it is frivolous, considering whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b). The trial court has broad discretion to dismiss an inmate's claim as frivolous. Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.—Corpus Christi 2002, no pet.). Generally, we review a trial court's dismissal of a lawsuit under chapter 14 for an abuse of discretion. In re Douglas, 333 S.W.3d 273, 293 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). However, when, as here, a trial court dismisses a claim as frivolous without a hearing, the issue on appeal is limited to whether the claim had no arguable basis in law. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). This is a legal issue which we review de novo. Id.
In reviewing the pleadings, we take the inmate's allegations as true and must determine "whether, as a matter of law, the petition stated a cause of action that would authorize relief." Brewer v. Simental, 268 S.W.3d 763, 770 (Tex. App.—Waco 2008, no pet.). We review pro se pleadings "by standards less stringent than those applied to formal pleadings drafted by lawyers." Id. A claim has no arguable basis in law only if it is based on (1) wholly incredible or irrational factual allegations, or (2) an indisputably meritless legal theory. Nabelek v. Dist. Attorney of Harris Cnty., 290 S.W.3d 222, 228 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). An inmate's claim may not be dismissed merely because the court considers the allegations "unlikely." Id. The judgment of the trial court will be affirmed if that judgment can be upheld on any reasonable theory supported by the evidence. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no pet.).
III. DISCUSSION
By his Theft Liability Act (TLA) claim, appellant alleged that Correctional Officer Reo "stole" family photographs from him. Appellant's petition does not specify how the other appellees engaged in allegedly wrongful conduct. Appellant's petition also does not specify whether appellees are being sued in their official or individual capacities. In his appellate brief, however, appellant states that "Appellees are Not Immune In Their Official or Individual Capacities from this lawsuit." Appellant also states in his brief that he is not suing TDCJ "since the [appellees'] actions were not part of their scope of employment [with TDCJ]." We construe appellant's statement as an argument that because the correctional officers stole his property, they may be sued in their individual capacities.
Section 101.106(f) of the Texas Tort Claims Act (TTCA) provides:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through Ch. 49, 2017 R.S.). In Franka v. Velasquez, the supreme court held that under section 101.106 of the TTCA, "a suit against a government employee acting within the general scope of his employment must be dismissed if it could have been brought under this chapter [that is, under the Act] against the governmental unit." 332 S.W.3d 367, 369 (Tex. 2011). The court in Franka clarified section 101.106(f)'s three-pronged test for determining whether a suit against a government employee is considered a suit against the employee in her official capacity only. Id.; see Lopez v. Serna, 414 S.W.3d 890, 893-94 (Tex. App.—San Antonio 2013, no pet.); Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The first prong is whether the defendant is an employee of a governmental unit. Lopez, 414 S.W.3d at 894. The second prong is whether a defendant is acting within the general scope of her employment. Id. And the third is whether suit could have been brought under the Tort Claims Act against the agency. Id. The statute strongly favors dismissal of governmental employees. Id.
In the present case, it is undisputed that the appellees are TDCJ employees. Therefore, the trial court could have properly determined that appellant's petition met Franka's first prong. See id. The trial court also could have determined that appellees were acting within the general scope of their employment. The TTCA defines "scope of employment as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by a competent authority." Id. (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West, Westlaw through Ch. 49, 2017 R.S.)). The grievance responses included in the record state that appellant's photographs were "confiscated" "due to questionable ownership" in accordance with TDCJ policy. It is therefore clear from the record that appellees were acting within the scope of their employment as corrections officers when confiscating appellant's property. Finally, the trial court could have properly determined that appellant could have brought his claims against TDCJ. See id. at 894-95 (holding inmate's theft claims, arising out of property confiscation, could have been brought against TDCJ); see also Mason v. Wood, No. 09-12-00246-CV; 2013 WL 1088735, at *3 (Tex. App.—Beaumont Mar. 14, 2013, no pet.) (mem. op.) (same).
A suit against an employee of a government agency that is based on acts within the general scope of the agency's employment relationship is the equivalent of a suit against the agency's employee in his official capacity regardless of whether the defendant can recover on the claim. See Franka, 332 S.W.3d at 382 n.68. In this case, the trial court apparently concluded that appellant was seeking to sue appellees under the TLA for activities that fell within the scope of their employment as officers employed by TDCJ. However, the TLA does not include a waiver of immunity for a state agency of the agency's employees for conduct that was within the course of the employees' employment. See Lopez, 414 S.W.3d at 896. Because appellant cannot sue appellees under the TLA for acting within the scope of their employment as employees of the TDCJ for confiscating appellant's property, the trial court properly concluded that appellant's theft claims, as alleged, were frivolous.
Appellant's fraud claim states that appellees committed fraud "by stating everything was done according to policy when this statement was false." Appellant's fraud claim was also subject to Section 101.106(f) dismissal because the actions allegedly taken by appellees—stating that the confiscation of appellant's property was pursuant to TDCJ policy—were within their scope of employment, whether or not such statements were accurate. See Fink v. Anderson, 477 S.W.3d 460, 468 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The trial court properly concluded that appellant's fraud claim was frivolous.
Accordingly, we hold that the trial court did not err in dismissing appellant's claims as frivolous under section 14.003. See TEX. CIV. PRAC . & REM. CODE ANN. § 14.003. We overrule appellant's sole issue.
IV. CONCLUSION
We affirm the trial court's judgment.
DORI CONTRERAS
Justice Delivered and filed the 24th day of August, 2017.