IN THE
TENTH COURT OF APPEALS
No. 10-09-00354-CV
SONNY WILSON,
Appellant
v.
TDCJ-ID,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 23,819
MEMORANDUM OPINION
Sonny Wilson, an inmate, filed a lawsuit against the Texas Department of
Criminal Justice, Correctional Institutions Division for the alleged loss and destruction
of some of his personal property. The trial court granted TDCJ’s plea to the jurisdiction,
and Wilson appealed. We affirm.
PLEA TO THE JURISDICTION
In his first issue, Wilson contends that the trial court erred in granting TDCJ’s
plea to the jurisdiction. Specifically, he argues that because he raised claims under the
Texas and United States Constitutions and the Texas Government Code, not just the
Texas Tort Claims Act, granting the plea to the jurisdiction was improper. He also
argues that the State has waived immunity under the Texas Tort Claims Act for
property taken from inmates.
Generally, the State of Texas has sovereign immunity from suit unless waived by
the Legislature. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Gen. Servs. Comm'n v.
Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit defeats a
trial court's subject matter jurisdiction and is properly asserted in a plea to the
jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex.
2004). Under the Texas Tort Claims Act, as it pertains to this case, a governmental unit
in the state is liable for property damage proximately caused by the wrongful act or
omission or the negligence of an employee acting within his scope of employment if the
property damage arises from the operation or use of a motor-driven vehicle or motor-
driven equipment and the employee would be personally liable to the claimant
according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0021 (Vernon 2005).
Wilson specifically alleged in his original petition and in his first supplemental
petition that his claim arose under the Texas Tort Claims Act. Wilson did not allege any
claim under the Texas or United States Constitutions nor did he allege any claim under
the Texas Government Code. Further, Wilson did not allege that his property damage
arose out of the use of a motor vehicle or motor driven equipment. Thus, the Texas Tort
Claims Act does not waive immunity for Wilson’s claim. Because immunity was not
waived, the trial court did not err in granting TDCJ’s plea to the jurisdiction. Wilson’s
first issue is overruled.
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AMEND PLEADINGS
In his second issue, Wilson argues that he should have been allowed to amend
his pleadings. A pleader must be given an opportunity to amend in response to a plea
to the jurisdiction only if it is possible to cure the pleading defect. Tex. A&M Univ. Sys.
v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). However, a plaintiff's suit should be
dismissed when either the pleadings alone or the jurisdictional evidence demonstrates
that the plaintiff's suit incurably falls outside any waiver of sovereign immunity. Id.
Here, Wilson’s pleadings alone demonstrate that his suit incurably falls outside any
waiver of sovereign immunity. Accordingly, the trial court did not err in failing to
allow Wilson to amend his pleadings, and Wilson’s second issue is overruled.
UNDUE PREJUDICE
In his fourth issue, Wilson contends that he was possibly subjected to undue
prejudice by the trial court. Specifically, Wilson complains that he had no opportunity
to organize his documents during argument in the trial court, and was not allowed to
respond after TDCJ’s argument. He also complains that the order granting the plea to
the jurisdiction reflects that the trial court considered the plea to the jurisdiction.
Wilson believes that that recitation means that the court did not consider his pleadings.
Further, Wilson complains that a smiley face made out of exclamation marks on a
printed docket sheet, which is not in the record before us, indicates the trial court was
happy to close Wilson’s case.
Wilson has not presented any case authority which would suggest that these
instances subjected him to undue prejudice. TEX. R. APP. P. 38.1(i). Accordingly, this
Wilson v. TDCJ-ID Page 3
issue is improperly briefed and presents nothing for review. Id. 33.1. Wilson’s fourth
issue is overruled.
CONCLUSION
Because the trial court granted TDCJ’s plea to the jurisdiction and not its motion
to dismiss pursuant to Chapter 14 of the Civil Practice and Remedies Code, we need not
address Wilson’s third issue about the propriety of such a dismissal.
Having overruled each issue properly before us and necessary for a resolution of
this appeal, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed December 8, 2010
[CV06]
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