Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00839-CV
Gonzalo Artemio LOPEZ,
Appellant
v.
Lydia SERNA, et al., in their Individual Capacities,
Appellee
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 12-03-00045-CVK
Honorable Ron Carr, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: September 25, 2013
AFFIRMED
Appellant Gonzalo Artemio Lopez, an inmate, filed suit against two Texas Department of
Criminal Justice (“TDCJ”) correctional officers, Lydia Serna and Gregory Galan. After a hearing,
the trial court dismissed Lopez’s claims under Chapter 14 of the Texas Civil Practice and Remedies
Code (“CPRC”). On appeal, Lopez contends the trial court erred in dismissing his claims because:
(1) his theft claims, arising out of property confiscation, are not subject to section 101.106(f) of
the Texas Tort Claims Act as interpreted by the Texas Supreme Court in Franka v. Velasquez; and
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(2) his claims are not frivolous even if they may ultimately be barred by sovereign immunity. We
affirm the trial court’s judgment.
BACKGROUND
On December 14, 2011, Officers Serna and Galan conducted a search of Lopez’s cell and
confiscated chess books, a yoga magazine, and other reading materials. Officer Serna filled out
paperwork documenting the property confiscation and left it for Lopez in his cell. Officer Serna
stated the reason for the property confiscation was because she had reason to question Lopez’s
ownership of the confiscated materials. Lopez filed a grievance through TDCJ’s administrative
system. Lopez then filed suit against Officers Serna and Galan, alleging they were liable for theft
under the Texas Theft Liability Act. Lopez filed an affidavit of inability to pay costs, and
submitted additional documents required under Chapter 14 of the Civil Practice and Remedies
Code. 1
The trial court sent notice of the suit to the Attorney General requesting amicus curiae
briefing on whether Lopez complied with Chapter 14’s requirements. The notice requested the
Attorney General seek authority to represent Officers Serna and Galan, and answer on their behalf.
The Attorney General submitted its Chapter 14 amicus brief to the trial court, arguing Lopez’s
claims should be dismissed because they would ultimately be barred by the officers’ motion to
dismiss under section 101.106(f) of the Texas Civil Practice & Remedies Code, as interpreted in
Franka v. Velasquez, and TDCJ’s subsequent assertion of sovereign immunity.
Following a hearing, the trial court signed a final judgment dismissing Lopez’s claims
under Chapter 14, specifically section 14.003(b)(1), which provides that an inmate’s suit may be
1
In his First Amended Petition, Lopez added two defendants, G. Calvin W. Davis and Cheryl Lawson, following the
hearing on his Chapter 14 motion. The same arguments made on behalf of Officers Serna and Galan apply to the two
other defendants, who were admittedly working in the course of their employment.
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dismissed if “the claim’s realistic chance of ultimate success is slight.” Lopez thereafter filed a
motion for new trial, which the trial court denied. He then perfected this appeal.
ANALYSIS
On appeal, Lopez contends the trial court erred in dismissing his claims because: (1) his
theft claims, arising out of property confiscation, are not subject to section 101.106(f) of the Tort
Claims Act as interpreted in Franka v. Velasquez; and (2) his claims are not frivolous even if they
may ultimately be barred by sovereign immunity.
Standard of Review
This court reviews a trial court’s dismissal of an inmate’s claim under Chapter 14 for an
abuse of discretion. Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San Antonio 2009, pet.
denied); Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet. denied). A
trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it
acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985). When, as here, the trial court dismisses a claim without
conducting a fact hearing, the issue on appeal is whether the claim had no arguable basis in law.
Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.). To determine
whether a trial court has properly determined there is no arguable basis in law for a claim, “we
examine the types of relief and causes of action appellant pleaded in his petition to determine
whether, as a matter of law, the petition stated a cause of action that would authorize relief.” Id.
When, as here, a trial court does not issue findings of fact and conclusions of law, the appellate
court implies all findings necessary to support the judgment. Griffith v. Griffith, 341 S.W.3d 43,
49 (Tex. App.—San Antonio 2011, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002)).
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Were Lopez’s claims subject to section 101.106(f) of the Texas Tort Claims Act?
Lopez first contends the trial court erred in dismissing his claims because his theft claims,
arising out of property confiscation, are not subject to section 101.106(f) of the Texas Tort Claims
Act, as interpreted by the supreme court in Franka v. Velasquez. See 332 S.W.3d 367, 369 (Tex.
2011). Specifically, Lopez asserts his complaint is not barred by Franka because Officers Serna
and Galan stole his property and may be sued in their individual capacities. Section 101.106(f)
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. 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 2011).
In Franka, the supreme court held that under section 101.106 of the Texas Tort Claims
Act, “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 at 369. 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 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. Anderson, 365 S.W.3d at 124. The second prong is
whether a defendant is acting within the general scope of her employment. Id. And the third is
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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 Mason v. Wood, No. 09-12-00245-CV, 2013 WL 1088735 (Tex. App.—Beaumont
March 14, 2013, no pet.), the Ninth Court of Appeals held that when an inmate alleges a
correctional officer committed theft under the Theft Liability Act while confiscating inmate
property under TDCJ’s inmate-property policy, as in this case, the claim is subject to section
101.106(f) under Franka. Id. at *7. That is, the claim could have been brought “under [the]
chapter” against the governmental unit. Id. at *7. The inmate in Mason sued correctional officers
for theft after they confiscated his property because he possessed contraband and had excessive
amounts of other property. Id. at *1, 7. The officers filled out a TDCJ form for property
confiscation and left it with the inmate. Id. at *1. The court of appeals affirmed the dismissal of
the inmate’s claims based on the inmate’s admission that the officers were acting in the scope of
their employment. Id. at *7.
Similarly, in this case, Lopez admits in his petition that Officers Serna and Galan are TDCJ
employees. Therefore, the trial court properly determined Lopez’s petition met Franca’s first
prong. See Anderson, 365 S.W.3d at 124. The trial court also determined Officers Serna and
Galan were acting within the general scope of their employment. The Tort Claims Act 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
§ 101.001(5)). Lopez argues the officers acted outside the scope of their employment because they
had no authority to commit theft. However, “[a]n official acts within the scope of her authority if
she is discharging the duties generally assigned to her.” Ballantyne v. Champion Builders, Inc.,
144 S.W.3d 417, 424 (Tex. 2004). That is, an employee’s scope of authority extends to job duties
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to which the official has been assigned, even if the official errs in completing the task. See id.
Here, Lopez, admits the officers were conducting their ordinary duties in confiscating his property.
For example, Lopez admits Officer Serna was in charge of offender property confiscation in his
building. Officer Serna also left a form with Lopez citing the reasons for confiscating his property.
Therefore, it is clear from the record the officers were acting within the scope of their employment
in this case while confiscating Lopez’s property.
Finally, consistent with the court’s holding in Mason, we hold the trial court in this case
properly determined Lopez could have brought his claims against TDCJ under the Tort Claims
Act. See Mason, 2013 WL 1088735, at *7 (holding claim is subject to section 101.106(f) under
Franka because it could have been brought “under chapter” against governmental unit); see also
Anderson, 365 S.W.3d at 124. Lopez argues Franka does not apply because theft is an intentional
tort. However, in Franka, the supreme court held that if a state employee is alleged to have
committed negligence or other “wrongful conduct” in the general scope of employment, then the
suit is subject to section 101.106(f) because it could have been brought against the state agency.
Accordingly, we reject Lopez’s argument that the principles announced in Franka apply only to
negligence claims and not intentional claims. See Mason, 2013 WL 1088735, at *9–10.
Lopez appears to argue an ultra vires exception (regarding the filing of suits against state
agencies) applies when he asserts the officers acted outside their legal authority. See Franka, 332
S.W.3d at 382 & n. 69. However, the ultra vires exception does not apply in this case because this
suit is for damages. See Mason, 2013 WL 1088735, at *10 (citing City of El Paso v. Henrich, 284
S.W.3d 366, 372 (Tex. 2009)). Furthermore, the officers were acting within their legal authority
to confiscate property determined to be in violation of TDCJ policy.
Finally, Lopez’s reliance on Salazar v. Collins and Presiado v. Sheffield is misplaced
because both cases were decided prior to Franka and assume the inmates could proceed against
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the correctional officers in both their individual and official capacities. See Salazar v. Collins, 255
S.W.3d 191, 203–05 (Tex. App.—Waco 2008, no pet.); Presiado v. Sheffield, 230 S.W.3d 272,
275 (Tex. App.—Beaumont 2007, no pet.). Franka held that claims brought against a public
official acting within the general scope of her employment is considered to be against the officer
in her official capacity only. Franka, 332 S.W.3d at 381 (quoting TEX. CIV. PRAC. & REM. CODE
ANN. § 101.106(f)). Therefore, we hold the trial court correctly determined that Lopez’s claims
against Officers Serna and Galan would have been subject to § 101.106(f). Officers Serna and
Galan, had they been served, could have moved under § 101.106(f) to dismiss the suit against them
and to have Lopez name TDCJ as the sole defendant.
Were Lopez’s claims properly dismissed under Chapter 14 when it appears from the face of
the petition they would likely be barred by sovereign immunity?
A trial court may rely on Chapter 14, specifically section 14.003(b)(1), to dismiss an
inmate’s claim if the petition alleges facts showing that sovereign immunity would, in all
likelihood, bar the inmate’s claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003. Section
101.106(f) outlines a procedure by which a state employee may move to be dismissed from a suit
arising from her conduct in the general scope of her employment. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.106(f) (“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.”) After
the employee files a section 101.106 motion to dismiss, the plaintiff must amend the petition within
thirty days and name the state agency as the sole defendant. Id. Then, the plaintiff must serve the
state agency, and the state agency may file a plea to the jurisdiction on the pleadings if there is no
waiver of sovereign immunity for the claim.
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Lopez argues the trial court erred in dismissing his claims under Chapter 14 as frivolous
even if it is clear from the face of his petition the claims may ultimately be barred by sovereign
immunity. We disagree.
The Legislature enacted Chapter 14 to specifically govern in forma pauperis inmate
proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001. Its primary purpose was to
provide trial courts with a mechanism to reduce the toll of frivolous inmate litigation on judicial
and state resources. Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.]
2001, no pet.). One of the provisions enabling trial courts to actively guard judicial resources
against frivolous inmate lawsuits is the pre-service dismissal provision. See TEX. CIV. PRAC. &
REM. CODE ANN. § 14.003(a). This provision gives trial courts the authority—prior to service of
the complaint upon the defendant—to dismiss the case sua sponte if it appears the inmate’s claim
is frivolous or malicious. Gross v. Carroll, 339 S.W.3d 718, 722 (Tex. App.—Houston [1st Dist.]
2011, no pet.). This provision is modeled after a provision in the federal Prison Litigation Reform
Act (the “PLRA,” which Congress enacted to reduce frivolous inmate litigation in federal court),
granting district courts similar authority and requiring they screen inmate complaints prior to
service. See Torns v. Miss. Dep’t of Corr., 301 Fed. Appx. 386, 388–89 (5th Cir. 2008).
Similarly, Section 14.003(b) provides that a trial court may dismiss an inmate’s suit as
frivolous and malicious, and it outlines four factors to consider, including 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b).
Because we hold Lopez’s claims against Officers Serna and Galan would have been subject
to section 101.106(f), and Lopez would therefore have to name TDCJ as the sole defendant, we
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hold the trial court correctly determined sovereign immunity would have barred Lopez’s suit
against TDCJ. There is no waiver of immunity under the Texas Theft Liability Act, and the Texas
Tort Claims Act expressly does not waive immunity for intentional torts. Solis v. City of Laredo,
353 S.W.3d 528, 532 n.2 (Tex. App.—San Antonio 2011, no pet.). Because Lopez’s petition
alleges facts showing that sovereign immunity would, in all likelihood, bar Lopez’s claims, we
hold the trial court correctly determined Lopez’s claims had only a slight chance of ultimate
success under section 14.003(b)(1).
We recognize section 101.106(f) is not automatically implicated; that is, a defendant must
file a motion to dismiss under that section, and the defendants in this case did not file a motion to
dismiss. However, we hold that under section 14.003(b), a trial court has the power to sua sponte
dismiss an inmate suit prior to a formal section 101.106(f) motion. That is, trial courts may dismiss
an inmate’s suit under section 14.003(b)(1) if it appears from the face of the petition the claim
would have no more than a slight chance of ultimate success because it would ultimately be barred
by an affirmative defense such as sovereign immunity. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.003(b)(1). This rule comports with the Legislature’s purpose in enacting Chapter 14, which
was to simplify inmate proceedings and avoid unnecessary procedures in cases where inmate
filings would ultimately lack any chance of success. See Sanders, 36 S.W.3d at 226. Accordingly,
we hold the trial court did not err in dismissing Lopez’s claims as frivolous under section 14.003.
CONCLUSION
Based on the foregoing, we overrule Lopez’s issues and affirm the trial court’s judgment.
Marialyn Barnard, Justice
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