Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 91722-1
consists of Justices Wise, Jewell, and Bourliot (Jewell, J.,
Frances Bourliot, Justice.
the motion for rehearing filed by appellee James Daniel
Boone. We withdraw our opinion dated March 19, 2019 and issue
the following substitute opinion.
interlocutory appeal, Jerry Sanchez, Timothy Williams, and
Jose Estrada (collectively, the officers), correctional
officers for the Texas Department of Criminal Justice (TDCJ),
challenge the trial court's denial of their plea to the
jurisdiction, seeking dismissal of claims brought against
them by inmate James Daniel Boone. Boone complains that the
officers confiscated certain items from his cell and failed
to return them. We conclude that the officers have shown
their entitlement to official immunity as to Boone's
claims involving one item but not the other items. Therefore,
we lack jurisdiction over Boone's claims as to the former
but not the latter. We dismiss in part and affirm in part.
to Boone, Williams and Estrada came into his cell and strip
searched him. Boone alleges that a handmade dog tag and
wedding band, among other things, were confiscated. Williams
and Estrada told Boone to get dressed and step out of his
cell. As he did so, Sanchez approached. Sanchez found a
typewriter, "slammed it on the cell floor busting it
open[, ] ripped the top off," and found a cell phone
charger hidden inside. Boone had another typewriter with SIM
cards hidden inside.
Boone received disciplinary reports for possession of the
cell phone charger and SIM cards as contraband. The property
officer returned certain property to Boone along with an
inventory sheet. The returned property did not include the
second typewriter, the dog tag, or wedding band. Boone
complained about his missing property and did not sign the
inventory sheet. The property officer told Boone to file a
"step-1 grievance" and took the property back to
the property room. The property officer subsequently returned
with the property, and Boone again refused to sign the
inventory form. The property officer told him that he was
signing only for the property he was receiving since he had
already filed a grievance for the missing property. Boone
then signed the form.
exhausting his administrative remedies, Boone filed this
lawsuit against the officers in their individual capacities,
bringing a claim under the Theft Liability Act (the Act), and
seeking damages for the confiscated typewriter, dog tag, and
wedding band. See Tex. Civ. Prac. &
Rem. Code §§ 134.001-.005. The officers filed a
plea to the jurisdiction, asserting sovereign immunity
"[t]o the extent the petition names [the officers] in
their official capacities" and official immunity as to
the claims against the officers in their individual
capacities. The trial court granted the plea
"to the extent that [Boone] seeks recovery against the
[officers] in their official capacities" but denied it
"[t]o the extent [Boone] seeks recovery against [the
officers] in their individual capacities."
issues, the officers argue they are entitled to official
immunity as to Boone's claims. Official immunity is an
affirmative defense that protects government employees from
personal liability. Univ. of Houston v. Clark, 38
S.W.3d 578, 580 (Tex. 2000). A governmental employee is
entitled to official immunity for the performance of
discretionary duties within the scope of the employee's
authority when the employee acts in good faith. Id.
Because official immunity is an affirmative defense, to
prevail on a plea to the jurisdiction, the governmental
employee must conclusively prove each element of the defense.
Id. (applying standard to summary judgment motion);
see also City of Dallas v. Brooks, 349 S.W.3d 219,
225 (Tex. App.-Dallas 2011, no pet.) (applying standard to
plea to the jurisdiction).
plea to the jurisdiction challenges the plaintiff's
pleadings, we determine whether the pleadings, construed in
the plaintiff's favor, allege facts sufficient to
affirmatively demonstrate the trial court's jurisdiction
to hear the case. Metro. Transit Auth. of Harris Cnty. v.
Douglas, 544 S.W.3d 486, 492 (Tex. App.-Houston [14th
Dist.] 2018, pet. denied) (citing Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004)). If the plaintiff pleaded facts making out a prima
facie case and the governmental unit instead challenges the
existence of jurisdictional facts, we consider the relevant
evidence submitted. Id. When reviewing a plea to the
jurisdiction in which the pleading requirement has been met
and evidence has been submitted to support the plea that
implicates the merits of the case, we take as true all
evidence favorable to the plaintiff. Id. We indulge
every reasonable inference and resolve any doubts in the
plaintiff's favor. Id. We review a challenge to
the trial court's subject matter jurisdiction de novo.
Arguments Specific to Handmade Items
officers contend in their first issue that (1) there is no
evidence that Boone had possession of his handmade dog tag
and wedding band at the time of the cell search or that the
items were confiscated; and (2) the officers are immune from
Boone's theft claims as to these items because the
alleged amount of actual damages is insignificant. We
conclude that we lack jurisdiction to consider these
arguments because they are not based on the officers'
assertion of official immunity.
jurisdiction over the interlocutory appeal of a plea to the
jurisdiction under section 51.014(a)(5) of the Civil Practice
and Remedies Code. See Tex. Civ. Prac. & Rem.
Code § 51.014(a)(5). That section provides that a person
may appeal from an interlocutory order denying a plea to the
jurisdiction "based on an assertion of immunity by an
individual who is an officer or employee of the state or a
political subdivision of the state." Id. In this
connection, we have held that under the statute, we have
jurisdiction to consider only the interlocutory appeal of a
challenge "based on the assertion of official
immunity." Baylor Coll. of Med. v. Hernandez,
208 S.W.3d 4, 11 (Tex. App.-Houston [14th Dist.] 2006, pet.
officers contend that there is no evidence that Boone had
possession of the handmade items at the time of the cell
search or that the items were confiscated. They contend that
they "need not prove official immunity" because
Boone lacks a claim to assert. This argument-based on the
lack of evidence to support Boone's theft claim-is not an
assertion of immunity. See id. Therefore, we lack
jurisdiction to address this issue. See id.
officers also contend for the first time on appeal that
Boone's claims as to the handmade items are barred under
the doctrine of de minimus non curiat lex. Under
that doctrine, any error is deemed harmless when the amount
of actual damages is insignificant. See Smith v.
Stevens, 822 S.W.2d 152, 152 (Tex. App.- Houston [1st
Dist.] 1991, writ denied). The officers have not cited any
authority establishing their entitlement to immunity from
Boone's claims under this doctrine, which has been
applied to dismiss inmate litigation when the amount of
damages sought was insignificant. See id. (affirming
trial court's dismissal of lawsuit as frivolous when
actual damages sought were $3.55). We decline to hold that
this doctrine confers official immunity from suit and thus
implicates this court's jurisdiction to hear an
interlocutory appeal under section 51.014(a)(5). We thus
conclude that we lack jurisdiction to address this issue as
Entitlement to Official Immunity
officers argue in their second issue that they are entitled
to immunity as to all of Boone's claims because in
confiscating the items, they met their burden to conclusively
prove each element of official immunity: they contend
specifically that they were performing discretionary duties
in good faith within the scope of their authority. We
conclude that the officers have established they are entitled
to official immunity as to the confiscated typewriter because
it was used to conceal contraband. We cannot reach the same