TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00223-CV
Carlos M. Lopez, Appellant
v.
Sandra Clark, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 98-04613-A, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
Appellant Carlos Lopez, an inmate of the Texas Department of Criminal Justice--
Institutional Division, sued appellee Sandra Clark, the district clerk of Bee County, for wrongfully refusing to file pleadings and other documents he tendered for filing in the district court of Bee County. Lopez also brought claims against four additional defendants, none of whom is a party to this appeal. (1) Clark answered and moved for summary judgment. From the trial court's grant of summary judgment, Lopez appeals. We will affirm the trial court's judgment.
Lopez alleged that on July 19, 1997, he mailed mandamus pleadings and other documents to Clark to file in the district court of Bee County. Clark returned the documents on November 23 as defective for failing to comply with chapter 14 of the Civil Practice and Remedies Code. Lopez then prepared and mailed to Clark a motion for leave to proceed without paying costs. Clark again returned the documents to Lopez. Lopez charged that by these actions Clark denied him access to the courts.
Clark moved for summary judgment asserting three grounds: (1) the defense of official immunity shields her from liability for her actions; (2) Lopez has not suffered any damages from her allegedly negligent actions; and (3) Lopez has produced no evidence of damages. See Tex. R. Civ. P. 166a(c), (i). As to her first ground, Clark alleged that she was a government employee who, while acting within the scope of her authority as district clerk of Bee County, performed discretionary duties in good faith when she refused to file legal pleadings forwarded to her by Lopez. A defendant who moves for summary judgment on an affirmative defense must conclusively prove all essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). The question on appeal, as it was in the trial court, is whether the movant has shown that no genuine issue of material fact exists and that she is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c).
The elements of the defense of official immunity are (1) the performance of a discretionary function (2) in good faith (3) within the scope of the employee's authority. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994). Clark's allegations, contrary to Lopez' contention, correctly set forth the elements of the official-immunity defense.
Lopez asserts that the evidence Clark offered fails to establish her affirmative defense as a matter of law. An inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or declaration containing detailed information about his litigation history and a certified copy of his trust-account statement. Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (West Supp. 2000). As summary-judgment evidence, Clark offered an affidavit in which she describes her practice as district clerk when pro se inmates tender pleadings with an affidavit or unsworn declaration of inability to pay costs. In part, Clark testified:
When such pleadings are received in the District Clerk's office, I must review these pleadings to determine whether or not they comply with the requirements of Tex. Civ. Prac. & Rem. Code § 14.001 et seq. After doing so, I must deliberate and decide, in my personal judgment, whether or not the pleadings comply with the provisions of § 14.001 et seq in reaching a determination as to whether or not the pleadings should be filed in my office.
In reaching a decision whether or not to file pleadings in my office, I am acting within the scope of my authority as District Clerk of Bee County, Texas, and I am acting in good faith.
Although I do not recall the specific pleadings forwarded to me by Plaintiff CARLOS M. LOPEZ, pro se, the aforementioned procedure is the procedure which I would have followed in refusing to file such pleadings, and returning same to Plaintiff. . . . Therefore, I utilized my discretion, in good faith, while acting in the scope of my authority while performing my duties as District Clerk of Bee County, Texas when I refused to file the legal pleadings forwarded to me by Plaintiff, . . .
By testifying that her job required her to determine whether pleadings such as Lopez's complied with the statute, that such a determination required her to exercise personal judgment, and that she exercised her judgment in good faith, Clark provided evidence on each element of official immunity. Evidence of the habit of a person, whether or not corroborated, is relevant to prove that the conduct of the person on a particular occasion conformed with the habit. Tex. R. Evid. 406; see Wendlandt v. Sommers Drug Stores Co., 551 S.W.2d 488, 490 (Tex. Civ. App.--Austin 1977, no writ). We conclude that Clark's testimony that she routinely reviewed pleadings such as those Lopez filed and that she returned those not complying with the statute established her defense of official immunity in this case as a matter of law. Having determined that this ground supports the summary judgment, we need not address Lopez's arguments attacking the alternative grounds Clark submitted.
Lopez argues that the trial court erred in allowing Clark to amend her answer before it rendered summary judgment in her favor. On February 8, 1999, Clark amended her answer to raise the affirmative defense of official immunity. The trial court rendered summary judgment on March 24. Lopez appears to complain that, according to Clark's certificate of service, a copy of the amended answer was mailed to him on February 5. Lopez failed to present this complaint to the trial court and further fails to show in what manner the date of service harmed him. See Tex. R. App. P. 44.1(a)(1).
Lopez also asserts without argument that the trial court erred in granting a severance after it rendered summary judgment for Clark. Again, Lopez neither objected to the severance in the trial court nor explains how it harmed him. See id.
We affirm the district court's judgment.
Mack Kidd, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed: May 11, 2000
Do Not Publish
1. Lopez's claims against the four defendants not involved in this appeal stem from an
incident in which Lopez allegedly refused to provide information about his cellmate's escape from
prison. Lopez claimed that James Zeller, the warden who investigated the incident, David
Blackwell, the hearing officer who conducted Lopez's disciplinary proceeding, Mark Diaz, the
assistant warden who upheld the disciplinary action, and Amalia Rodriguez-Mendoza, the district
clerk who refused to file his petition for judicial review, violated his constitutional rights, acting
both individually and in furtherance of a conspiracy.
pro se inmates tender pleadings with an affidavit or unsworn declaration of inability to pay costs. In part, Clark testified: