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Sanchez v. Boone

Court of Appeals of Texas, Fourteenth District

May 16, 2019

JERRY SANCHEZ, TIMOTHY WILIAMS, AND JOSE ESTRADA, Appellants
v.
JAMES DANIEL BOONE, Appellee

          On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 91722-1

          Panel consists of Justices Wise, Jewell, and Bourliot (Jewell, J., concurring).

          SUBSTITUTE OPINION

          Frances Bourliot, Justice.

         We deny the motion for rehearing filed by appellee James Daniel Boone. We withdraw our opinion dated March 19, 2019 and issue the following substitute opinion.

         In this 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.

         Background

         According 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.

         Thereafter, 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.

         After 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.[1] 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.[2] 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."

         Discussion

         In two 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).

         When a 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. Id.

         I. Arguments Specific to Handmade Items

         The 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.

         We have 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."[3] 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. denied).[4]

         The 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.

         The 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 well.

         II. Entitlement to Official Immunity

         The 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 ...


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