In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00266-CV
___________________________
DALE ROY SLAVEN, Appellant
V.
BRAD LIVINGSTON, WILLIAM STEPHENS, AND LYNN M. CLARK, Appellees
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 184,311-A
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Inmate Dale Roy Slaven appeals the trial court’s summary judgment dismissing
his suit against three Texas Department of Criminal Justice (TDCJ) employees—Brad
Livingston, William Stephens, and Lynn M. Clark. We reverse and remand as to
Slaven’s 42 U.S.C. § 1983 claim based on an alleged violation of the due-course-of-law
provision of the Texas Constitution—which Livingston, Stephens, and Clark concede
that they did not address when moving for summary judgment. But as to all the other
claims, we affirm.
In Slaven’s “Issues-Presented-for-Review” section of his pro se brief, he lists
five issues.1 See Tex. R. App. P. 38.1(f). But in his brief’s “Arguments” section, he
presents them as three separately enumerated issues: (1) “Issue #1 Argument: The
Trial Court was without discretion in granting summary[]judgment”; (2) “Issue
1
He framed his issues as follows:
#1-The Appellees did not prove as a Matter of Law that they were
entitled to summary[]judgment as a Matter of Law;
#2-The evidence produced by the Appellees was not Legally or Factually
sufficient to support the Trial Court[’]s decision;
#3-The Court left Factually disputed issues unresolved;
#4-The Court erred by Misapplying the Law regarding the various
Immunities, Defenses, & Exceptions;
#5-The evidence produced by the Appellees in their Motion for
Summary[]Judgment proved the opposite of the appellees[’] claims[.]
2
#2 Argument: The Trial Court was without discretion to grant summary[]judgment”;
and (3) “Issue #3 Argument: The Trial Court was without discretion granting
summary[]judgment by erring in admitting evidence that was not sufficient.” See Tex.
R. App. P. 38.1(i).
I. Background Generally
Slaven was convicted of 15 offenses in 2010. Slaven v. State, No. 02-10-00413-
CR, 2012 WL 1964590, at *1 (Tex. App.—Fort Worth May 31, 2012, pet. ref’d)
(mem. op., not designated for publication). 2 The trial court assessed court costs at
$274 per case for a cumulative total of $4,110. Slaven v. State, No. 02-11-00297-CV,
2012 WL 5535603, at *1 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem.
op.).3 In 2011, the trial court signed orders to withdraw funds in each of the 15 cases.
Id. But because each order authorized a 10% withdrawal from his inmate account,
Slaven complained that they collectively authorized taking 150% of his trust fund
deposits, which left nothing for him.
The full citation is Slaven v. State, Nos. 02-10-00413-CR, 02-10-00414-CR, 02-
2
10-00415-CR, 02-10-00416-CR, 02-10-00417-CR, 02-10-00418-CR, 02-10-00419-CR,
02-10-00420-CR, 02-10-00421-CR, 02-10-00422-CR, 02-10-00423-CR, 02-10-00424-
CR, 02-10-00425-CR, 02-10-00426-CR, 02-10-00427-CR, 2012 WL 1964590, at
*1 (Tex. App.—Fort Worth May 31, 2012, pet. ref’d) (mem. op., not designated for
publication).
The full citation is Slaven v. State, Nos. 02-11-00297-CV, 02-11-00298-CV, 02-
3
11-00299-CV, 02-11-00300-CV, 02-11-00301-CV, 02-11-00302-CV, 02-11-00303-CV,
02-11-00304-CV, 02-11-00305-CV, 2012 WL 5535603, at *1 (Tex. App.—Fort Worth
Nov. 15, 2012, no pet.) (mem. op.).
3
In 2011, the trial court heard Slaven’s complaints, and in a December 29,
2011 order, it waived court costs in ten of the fifteen cases and, in the remaining five
cases, ordered the Institutional Division of the TDCJ “to garnish [Slaven’s] Inmate
Account for no more than 10% per month, collectively on these five cases, in order to
collect the court fees.”
Still dissatisfied, Slaven appealed the trial court’s December 29, 2011 order to
us, but we affirmed, in the process construing the trial court’s language to mean that
“the Department could . . . cumulatively withdraw no more than ten percent of the
funds in Slaven’s inmate account per month.” See id. at *1, 5. We even added a
footnote to clarify our construction: “In other words, even though Slaven still must
pay court costs for five cases, the total amount of court costs taken from his trust
account in any given month cannot exceed ten percent of the account balance.” Id. at
*1 n.4. Driving home the point, we gave an example: “If Slaven’s account balance is
$15, the Department can withdraw only $1.50 and equally apportion that $1.50 toward
the outstanding balance in the five cases.” Id.
But in practice, Slaven discovered that the Inmate Trust Fund Department
construed it differently—the Department was taking 50% of his deposits. Slaven’s
mother sent him $50 every month, meaning that the Department was taking
$25 instead of only $5 each month to pay off his court costs.
Complaining about excessive amounts being withdrawn from his trust account,
in 2012 Slaven unsuccessfully sought mandamus relief from us against “the Texas
4
Department of Criminal Justice, the Tarrant County District Attorney, or the Tarrant
County District Clerk.” See In re Slaven, No. 02-12-00431-CV, 2012 WL 5356297, at
*1 (Tex. App.—Fort Worth Nov. 1, 2012, orig. proceeding) (mem. op.).4
Slaven then turned to the trust fund for relief, but in 2014, the only answer he
received was a hand-written response from “L. Clark”: “We Collect 10% per Court
order per deposit. You have 5 orders. Any Questions Please Contact the Court.”
Contacting the trial court is precisely what Slaven did in 2015. Unlike in
2011 when the trial court granted Slaven some relief, this time the trial court did not.
And unlike in 2011—when Slaven appealed the trial court’s order because it did not
give him all the relief he wanted—this time Slaven did not appeal.
Instead, Slaven sued Brad Livingston, the executive director of the TDCJ;
William Stephens, the director of the Institutional Division of the TDCJ; and L. Clark,
an employee in the Inmate Trust Fund Department. Slaven sought relief against them
in both their official and individual capacities.
Livingston, Stephens, and Clark answered by asserting various immunities,
including those contained in the Texas Tort Claims Act, and a general denial. In
response to Slaven’s petition, the Inmate Trust Fund Department placed a hold on
any further withdrawals from Slaven’s inmate account pending the litigation. At that
4
Based on the appellate cause numbers, Slaven filed his mandamus petition
after filing his appeal attacking the trial court’s December 29, 2011 order.
5
time, Slaven’s total remaining balance for court costs and fees in all his cases was
$42.67.
In his petition, Slaven asserted five causes of action based in part on the
disputed 50% withdrawals discussed above and in part—raising a totally new
matter—on the delay between the time his mother’s bank debited her account and the
time the Inmate Trust Fund Department credited his account. Citing Black’s Law
Dictionary, Slaven contended that the transfers into his account should have occurred
within one day instead of the three to nine days that he experienced, and he alleged
that Livingston, Stephens, and Clark were using the delay to earn interest on his
money.
We summarize Slaven’s five causes of actions as follows:
• The first consisted of two 42 U.S.C. § 1983 claims:
o He based Part A on an alleged due-process violation under the
Fourteenth Amendment of the United States Constitution and its Texas
equivalent, an alleged due-course-of-law violation under Texas
Constitution article I, section 19. Specifically, Slaven asserted that
Livingston, Stephens, and Clark were authorized to take only 10% out of
his trust fund to pay costs but took, instead, 50%.
o He alleged in Part B a Takings Clause violation under the Fifth
Amendment of the United States Constitution. 5 Here, Slaven asserted
that Livingston, Stephens, and Clark held his funds for three to nine
days and, in the process, (1) denied him access to his own money and
(2) drew interest on his money.
5
Slaven did not rely on the Texas Constitution in Part B.
6
• Next, Slaven alleged that Livingston, Stephens, and Clark (Clark primarily)
converted his funds by withholding 50% of his funds instead of only 10%.
• In his third cause of action, Slaven contended that Clark—again by
withholding 50% of his funds—committed theft under section 31.03 of the
penal code. See Tex. Penal Code Ann. § 31.03. But see Morris v. Cozby, No.
11-16-00169-CV, 2018 WL 2749804, at *5 (Tex. App.—Eastland June 7,
2018, no pet.) (mem. op.) (stating that the Texas Penal Code does not create
private causes of action). Slaven placed this contention under the heading,
“Theft Liability Act.” See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001–
.005; Morris, 2018 WL 2749804, at *5 (stating that persons committing theft
are civilly liable under the Texas Theft Liability Act).
• Slaven asserted in his fourth cause of action that Livingston, Stephens, and
Clark owed him an “informal” fiduciary duty because they operated the
Inmate Trust Fund and violated their fiduciary duty because they held his
funds for three to nine days and because they withheld 50% of his money
instead of the 10% authorized by the trial court’s order.
• Finally, in his fifth cause of action, Slaven sought a declaratory judgment
setting out the parameters of Livingston’s, Stephens’s, and Clark’s
“informal” fiduciary duties. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 37.001–.011.
Livingston, Stephens, and Clark filed a Chapter 14 motion to dismiss, see Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.001–.014, alleging that Slaven had failed to
comply with the procedures required of an inmate who is proceeding in forma pauperis.
They later explicitly asked the trial court to “dismiss their previously filed Chapter
14 Motion to Dismiss” and, still later, moved for summary judgment instead. In an
affidavit supporting their summary-judgment motion, Terri Hopkins, a manager for
the Inmate Trust Fund, stated:
To prepare for this affidavit, I have reviewed: (1) Mr. Slaven’s Inmate
Trust Fund (“ITF”) account; and (2) the December 29, 2011, Tarrant
County court order that authorizes TDCJ to garnish 10% of Mr. Slaven’s
7
monthly ITF account deposits to repay court costs for each of five
Tarrant County cases. The December 29, 2011 Tarrant County Order
shows that Mr. Slaven owed court costs on five separate criminal cases
for a total of $1,370.00. After reviewing . . . Mr. Slaven’s ITF account, it
shows that a total of $1,315.23 has been withheld since February 18,
2011, and [has been] remitted to Tarrant County. The employees who
withheld and remitted the money to Tarrant County acted within the
course and scope of their employment with the Texas Department of
Criminal Justice.
There has been a hold placed on withdrawals from Mr. Slaven’s
ITF account for the pendency of this lawsuit. Currently, Mr. Slaven has
$42.67 remaining balance on the full amount owed to repay the costs of
his five Tarrant County cases.6
In the motion itself, Livingston, Stephens, and Clark alleged that Slaven’s petition
conceded that they were acting under the general scope of their employment as TDCJ
administrators.
And although supported by (1) Hopkins’s affidavit, (2) the trial court’s
December 29, 2011 order, and (3) our 2012 Slaven judgment and opinion affirming the
December 29, 2011 order, substantively Livingston, Stephens, and Clark appeared to
have moved for summary judgment on the pleadings—that is, they argued that the
6
In Slaven’s response to Livingston, Stephens, and Clark’s motion for summary
judgment and in his brief, Slaven attacked Hopkins’s supporting affidavit. But
Hopkins’s affidavit established only what Slaven himself had alleged in his petition—
that the Inmate Trust Fund Department construed the trial court’s December 29,
2011 order to authorize 10% withdrawals for each of the five remaining cases for a
total of 50%. Although Slaven appeared to object to Hopkins’s reliance on trust-fund
documents because they were not attached to the affidavit, Slaven did not and does
not challenge Hopkins’s assertion that, based on his review of those documents,
Slaven’s remaining court-costs-and-fees balance was only $42.67. Slaven confirms in
his brief that Hopkins placed a hold on his account preventing any further
deductions.
8
facts Slaven alleged in his petition affirmatively negated his causes of action. See Perez
v. Kirk & Carrigan, 822 S.W.2d 261, 269 (Tex. App.—Corpus Christi 1992, writ
denied). In the argument portion of their motion, they did not rely on any of the
attached exhibits but relied instead on Slaven’s petition and numerous legal
authorities.
The trial court granted Livingston, Stephens, and Clark’s motion and ordered
Slaven’s claims against them dismissed.
II. Background on the Inmate Trust Fund
Central to Slaven’s case is the Inmate Trust Fund. In pertinent part, the
government code explains that it exists because inmates may not possess money and
that it functions like a checking account. The government code also sets out the
parameters for its use—one of which is that the fund may be used to pay court-
ordered fees and costs:
(a) The department shall take possession of all money that an inmate has
on the inmate’s person or that is received with the inmate when the
inmate arrives at a facility to be admitted to the custody of the
department and all money the inmate receives at the department during
confinement and shall credit the money to an account created for the
inmate. The department may spend money from an inmate account on
the written order of the inmate in whose name the account is established
or as required by law or policy subject to restrictions on the expenditure
established by law or policy. The department shall ensure that each
facility operated by or under contract with the department shall operate
an account system that complies with this section, but the department is
not required to operate a separate account system for or at each facility.
....
9
(e) On notification by a court, the department shall withdraw from an
inmate’s account any amount the inmate is ordered to pay by order of
the court under this subsection. . . . The department shall make a
payment under this subsection as ordered by the court to either the
court or the party specified in the court order. The department is not liable
for withdrawing or failing to withdraw money or making payments or failing to make
payments under this subsection. The department shall make withdrawals and
payments from an inmate’s account under this subsection according to
the following schedule of priorities:
...
(4) as payment in full for all orders for court fees and costs;
....
Tex. Gov’t Code Ann. § 501.014(a), (e) (emphasis added).
III. Standard of Review for Summary Judgment on the Pleadings
A. Summary judgment on the pleadings is generally—but not always—
improper.
A plaintiff may plead facts that affirmatively negate its cause of action or, put
another way, a party may plead itself out of court. Tex. Dep’t of Corr. v. Herring,
513 S.W.2d 6, 9 (Tex. 1974). In general, it is improper to grant summary judgment on
a deficient pleading’s failure to state a cause of action when the deficiency can be
attacked through a special exception. In re B.I.V., 870 S.W.2d 12, 13 (Tex. 1994). But a
pleading-deficiency summary judgment may be proper if a party has had an
opportunity by special exception to amend and fails to do so or if it files an additional
defective pleading. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Gallien v.
Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 866 (Tex. App.—Texarkana 2006,
no pet.). If a pleading deficiency cannot be cured by an amendment, summary
10
judgment may also be proper. Gallien, 209 S.W.3d at 866. In such a case, we review
the pleadings de novo, taking all allegations, facts, and inferences in the pleadings as
true and viewing them in a light most favorable to the pleader. Natividad, 875 S.W.2d
at 699.
B. Slaven waives any complaints that (1) his petition was being improperly
attacked by summary judgment instead of by special exceptions and
(2) he was not given an opportunity to amend his petition.
In Slaven’s July 10, 2017 response to Livingston, Stephens, and Clark’s motion
for summary judgment, he neither objected on the basis that special exceptions were
the proper means to attack his petition nor sought leave to amend his petition. Only
after the trial court signed the order granting summary judgment did Slaven move for
leave to amend. To the extent he argued post-judgment and now argues in his
appellate brief that he should have been given leave to amend, he waived that
complaint. See Perkins v. Hicks, No. 02-17-00227-CV, 2018 WL 3968489, at *3 (Tex.
App.—Fort Worth Aug. 16, 2018, no pet.) (mem. op.).
IV. Discussion of Summary Judgment on Slaven’s Causes of Action
Slaven pleaded five causes of action, the first of which had two components.
We address each of his claims in turn.
A. Section 1983 claims must be based on violations of the United States
Constitution or federal law.
In pertinent part, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected, any
11
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an
action at law.
42 U.S.C. § 1983. “Section 1983 creates a private right of action to vindicate violations
of rights, privileges, and immunities secured by the Constitution and laws of the
United States.” Heirs of Del Real v. Eason, 374 S.W.3d 483, 486 (Tex. App.—Eastland
2012, no pet.); Reece v. Johnson, No. 10-12-00077-CV, 2013 WL 4511930, at *2 (Tex.
App.—Waco Aug. 22, 2013, no pet.) (mem. op.). A cause of action under 42 U.S.C.
§ 1983 involves two essential elements: (1) a person acting under color of state law
must have committed the complained-of conduct, and (2) the conduct deprived a
person of rights, privileges, or immunities secured by the Constitution or the laws of
the United States. Cty. of El Paso v. Dorado, 180 S.W.3d 854, 862 (Tex. App.—El Paso
2005, pet. denied). A § 1983 claim must be based on violations of the United States
Constitution or federal law, not on violations of a state constitution or state law. See
Reece, 2013 WL 4511930, at *2.
1. We treat separately Slaven’s § 1983 claims based on state due-course-
of-law and federal due-process contentions.
a. Because Livingston, Stephens, and Clark did not move for
summary judgment on Slaven’s § 1983 claim based on alleged due-
course-of-law violations under the Texas Constitution, we reverse
that portion of the judgment.
Livingston, Stephens, and Clark acknowledge that their summary-judgment
motion did not address Slaven’s § 1983 claims brought under the due-course-of-law
12
provision of section 19 of article I of the Texas Constitution and ask that those claims
should therefore be remanded to the trial court. We agree. We cannot affirm a
summary judgment on grounds not expressly set out in the motion or response. See
Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).
b. As a matter of law, Slaven cannot recover on his § 1983 claim based
on alleged due-process violations under the United States
Constitution.
In their motion, Livingston, Stephens, and Clark relied on a United States
Supreme Court and a federal-district-court opinion for the proposition that they were
entitled to summary judgment on any of Slaven’s 42 U.S.C. § 1983 claims that were
based on alleged due-process violations under the Fourteenth Amendment. See Hudson
v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 (1984); Kothmann v. Thaler, No. 3-10-
CV-1306-B, 2010 WL 4063168, at *2 (N.D. Tex. Sept. 17, 2010). We agree.
Slaven alleged that Livingston, Stephens, and Clark acted intentionally and
deliberately when withholding 50% of his trust funds.
But the Supreme Court has held that “an unauthorized intentional deprivation
of property by a state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful postdeprivation remedy for the loss is available.” Hudson, 468 U.S. at 533,
104 S. Ct. at 3204. More recently, a federal district court mirrored that assessment:
“The intentional deprivation of property by prison officials does not give rise to a
federal[-]civil[-]rights claim unless the inmate can show that state remedies are
13
inadequate.” Kothmann, 2010 WL 4063168, at *2. And for Texas prisons specifically,
the court wrote, “Texas provides an adequate post-deprivation remedy to prisoners by
way of a common law action for conversion . . . .” Id.
Similarly, because Texas provides such adequate remedies, the Eastland Court
of Appeals has held that a prison official who either negligently or intentionally
deprives an inmate of property does not violate the Due Process Clause. Morris,
2018 WL 2749804, at *5 (citing Aguilar v. Chastain, 923 S.W.2d 740, 743–44 (Tex.
App.—Tyler 1996, writ denied)).
Slaven acknowledges that he has availed himself of both administrative and
trial-court review. “The Constitution requires due process; it does not require error-
free decision making.” Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL 6648747,
at *27 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.), cert. denied,
138 S. Ct. 1550 (2018). Although Slaven’s attempts to resolve his dispute
administratively failed, and although his 2015 suit in the trial court did not procure for
him the relief he sought, Slaven never appealed the trial court’s ruling. Because Slaven
did not exhaust his postdeprivation remedies, he cannot show that they were
inadequate. See generally Olivarez v. Tex. Dep’t of Criminal Justice Corr. Insts. Div., No. 14-
12-00953-CV, 2014 WL 1267072, at *1–2 (Tex. App.—Houston [14th Dist.] Mar. 27,
2014, no pet.) (mem. op.).
14
2. The trial court properly granted summary judgment on Slaven’s
42 U.S.C. § 1983 claims based on alleged Takings Clause violations.
Slaven’s petition asserted that the debits from his mother’s account occurred
on the fifth of each month but the funds were not made available to him until the
eighth or fourteenth of each month, that is, not until three to nine days later. He also
asserted that Livingston, Stephens, and Clark were drawing interest on his money
while denying him the use of it and, in doing so, were violating the Takings Clause of
the United States Constitution. See U.S. Const. amend. V.
The Takings Clause consists of several elements: (1) the action complained of
must be a governmental one; (2) the action must amount to a taking; (3) the thing
taken must be “private property,” that is, it must be a right included in the owner’s
“bundle” of property rights; and (4) the taking must be for a “public” use. GTE Sw.
Inc. v. Pub. Util. Comm’n of Tex., 10 S.W.3d 7, 11 (Tex. App.—Austin 1999, no pet.).
Asserting that Slaven had made “bald allegations and conclusionary
statements” and that he had failed to assert a claim that was “plausible on its face,”
Livingston, Stephens, and Clark moved for summary judgment on Slaven’s Takings
Clause claim. They asserted that Slaven failed to show the essential elements of a
takings claim, arguing that Slaven had not shown that (1) processing a deposit
amounts to a taking, (2) either the delay or the interest amounted to a protectable
property interest, and (3) any alleged taking was for public use. We agree.
15
a. Slaven questions the delays in crediting his account.
To his response to the summary-judgment motion, Slaven attached his
mother’s affidavit showing that the debits occur on the fifth of each month. In his
unsworn declaration, Slaven stated that the money was never disbursed before the
eighth of the month and, in some instances, not until the fourteenth. In Slaven’s
summary-judgment response, he asserted that it was “reasonable to assume” that the
money was earning interest.
In Slaven’s petition, he referred to Exhibit I, which consisted of two
documents: (1) “Authorization Agreement for Automatic Deposits (ACH Credits) to
an Inmate Account” (the authorization agreement) and (2) “Texas Department of
Criminal Justice – Inmate Trust Fund Department / Current Inmate Trust Fund
Deposit Options” (the options form). He next stated that “ACH” stood for
“Automated Clearing House,” and—citing “Black Law Dictionary, Abridged 6th ed.”
but not providing a copy—he asserted that an automated clearing house is defined as
“[a] collection of regional electronic interbank networks used to process transactions
electronically with a guaranteed one-day bank collection float.”7 In responding to the
summary-judgment motion, Slaven again relied on Black’s Law Dictionary for the
7
NASDAQ defines “collection float” as “[t]he period between the time . . . a
check is deposited in an account and the time funds are made available.” NASDAQ,
https://www.nasdaq.com/investing/glossary/c/collection-float (last visited Feb. 15,
2019).
16
proposition that, “by definition,” an automated clearing house guarantees a one-day
“bank collection float.”
b. The Fifth Circuit has already addressed and rejected Slaven’s
interest argument.
The Fifth Circuit Court of Appeals has addressed Slaven’s Takings Clause
argument and held that Texas inmates—by voluntarily participating in the inmate
account—knowingly waive any right to any interest. See Hatfield v. Scott, 306 F.3d 223,
228–30 (5th Cir. 2002). Indeed, Slaven admitted in his petition that the inmate
account is a non-interest-earning account.8
We have held that “[a]dmissions in trial pleadings are judicial admissions in the
case in which the pleadings are filed; the facts judicially admitted require no proof and
preclude the introduction of evidence to the contrary.” In re A.E.A., 406 S.W.3d 404,
410 (Tex. App.—Fort Worth 2013, no pet.). This rule is “based on the public policy
8
The options form that Slaven provided is silent on whether inmates earn
interest. But another version of the options form that we found on-line expressly
states that “[o]ffenders do not earn interest on funds in their account.” Texas
Department of Criminal Justice—Inmate Trust Fund, http://www.tdcj.texas.gov/
documents/bfd/Deposit_Options_Flyer.pdf (last visited Feb. 15, 2019). And the
TDCJ “Offender Orientation Handbook” states: “The Inmate Trust Fund does not
pay interest. Therefore, the account should hold no more than what is required to
meet the offender’s immediate needs. Offenders with excess funds are encouraged to
open a savings account with a banking facility of their choice.” Offender Orientation
Handbook—Texas Department of Criminal Justice, http://www.tdcj.state.tx.us/
documents/Offender_Orientation_Handbook_English.pdf p. 66 (last visited Feb. 15,
2019).
17
that it would be absurd and manifestly unjust to permit a party to recover after he has
sworn himself out of court by a clear and unequivocal statement.” Id.
Because Slaven abandoned any right to interest, he has no Takings Clause claim
to it.9 See Hatfield, 306 F.3d at 226–30.
c. Because any delays result from the ACH system, Slaven cannot
show a Takings Clause violation.
In the trial court, and also to us, Slaven complains about the delay from the
time the money is debited from his mother’s account until the time it is credited to his
trust account, during which time he does not have access to his money. (This differs
from a claim that he was entitled to receive interest.) Slaven asserts that there should
be only a one-day “guaranteed” float between the time the money is debited from his
mother’s account and credited to his trust account. To us, Slaven is implying that if
the money does not post to his inmate account within one day, there must be a
reason, and he suggests that the reason is that the money is drawing interest during
the delay. In his response to the summary-judgment motion, Slaven asserted:
Slaven is correct to the extent he asserts that the trust fund itself earns interest.
9
As the Fifth Circuit has explained:
The inmate trust fund was established under TDCJ Administrative
Directive 14.62, as authorized under Tex. Gov’t Code § 501.014. Under
the terms of the fund, interest accruing to the fund is used to offset the
cost of maintaining the consolidated accounts. If excess interest is
earned above the cost of maintenance, it is invested in United States
Treasury bills and any interest earned is appropriated to TDCJ to
partially fund the cost to operate the Inmate Trust Fund Department.
Hatfield, 306 F.3d at 224–25.
18
After the funds accumulated by the ITF are held for a period, they are
disbursed between the 8th day & 14th day of the month It is reasonable
to assume that during this 3[-] to 9[-]day period in which the ITF has
care, custody, & control over the funds, it is drawing interest on those
funds. The larger the amount of funds that are accumulated by the ITF,
the more advantageous the interest rate.
The linchpin to Slaven’s argument is his assertion that he is entitled to his
money within one day after it is debited from his mother’s account. But Slaven
provides no authority to show that the ACH system has any one-day “guaranteed”
processing time from which he has a right to benefit.
First, “Black’s Law Dictionary, Abridged 6th ed.”—which was Slaven’s sole
purported authority in the trial court—is not the law; it is a dictionary. Cf. Campbell
Paint & Varnish Co. v. Ladd Furniture & Carpet Co., 83 S.W.2d 1095, 1097 (Tex. Civ.
App.—Fort Worth 1935, writ dism’d) (“Dictionaries are supposed to record meanings
already established for words. Whether a particular dictionary does so with reference
to a particular word is a question which scholars have found rich field for controversy,
sometimes acrid.”) Moreover, the current version of Black’s Law Dictionary does not
contain an entry for “ACH” or “Automated Clearing House.” It does define
“clearinghouse,” but its definition does not match Slaven’s. Clearinghouse Black’s Law
Dictionary (10th ed. 2014).
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Second, Slaven’s own documents—the “Authorization Agreement for
Automatic Deposits (ACH[ 10] Credits) to an Inmate Account” and the options form
titled “Monthly Checking Account Debit (ACH)”—undercut the idea of a guaranteed
one-day turnaround. Although the authorization agreement states that the debit will
occur “on or around” the fifth of each month and the options form provides that the
debit will occur “on” the fifth of each month, neither document indicates when the
funds will be credited to the inmate’s account.11 The options form does list various
other means to transfer money into an inmate’s account; for a fee, if Slaven’s mother
had chosen Western Union Quick Collect, her deposit made using that method would
“post to offender’s account within 24 hours.” So the options form itself identifies a
means by which transfers can be completed within one day, but an ACH transfer was
not it.
Even though Slaven rightly notes that deposits into the Inmate Trust Fund are
made through an automated clearing house, nothing requires an ACH transaction to
We note that “ACH” seems universally to mean “Automated Clearing
10
House,” regardless of its absence from the current Black’s Law Dictionary. See, e.g.,
Martinez v. State, No. 08-13-00363-CR, 2016 WL 2864952, at *5 (Tex. App.—El Paso
May 13, 2016, no pet.) (not designated for publication) (referring without comment to
“voluminous Automated Clearing House (ACH) records” and to funds electronically
transferred “by an automated clearing house (ACH)”).
Another version of the options form provides: “To have a set amount
11
automatically debited from a personal checking account once each month for deposit
to a specified offender. Debit transaction will occur on or around the 5th day of each
month and credit to the Offender’s account on or around the 10th.” Texas Department
of Criminal Justice—Inmate Trust Fund, http://www.tdcj.texas.gov/
documents/bfd/Deposit_Options_Flyer.pdf (last visited Feb. 19, 2019).
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be processed within one day. Slaven cannot show that processing a deposit amounts
to a governmental taking, that the delay or the interest amounted to a protectable
property interest, or that any alleged taking was for public use.
B. Slaven’s three tort claims are subject to the Texas Tort Claims Act, and
thus the trial court properly dismissed Slaven’s tort claims against
Livingston, Stephens, and Clark.
Slaven’s next three causes of action—conversion, theft, and breach of fiduciary
duty—are all torts. See Robinson v. Scott, No. 10-16-00158-CV, 2018 WL 1097469, at
*2 (Tex. App.—Waco Feb. 28, 2018, no pet.) (mem. op.) (conversion; theft); In re
Estate of Preston, 346 S.W.3d 137, 170 (Tex. App.—Fort Worth 2011, no pet.) (breach
of fiduciary duty).
Asserting immunity from Slaven’s tort claims under section 101.106 of the
Texas Tort Claims Act (TTCA), Livingston, Stephens, and Clark moved for summary
judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.
When a plaintiff alleges a tort against a governmental unit or its employees, the
plaintiff must elect whether to sue the governmental unit or its employees; suing one
irrevocably bars suit against the other. Id. § 101.106(a), (b). If a plaintiff sues both the
governmental unit and any of its employees (which is not what Slaven did), on the
governmental unit’s motion its employees can be dismissed immediately. Id.
§ 101.106(e). But when the plaintiff chooses to sue only the employees, those
employees—if they can meet section 101.106(f)’s requirements—can force the
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plaintiff to dismiss its suit against them and to file an amended petition against the
governmental unit. Id. § 101.106(f). The relevant portions of the statute appear below:
§ 101.106 Election of Remedies
(a) The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the
governmental unit consents.
....
(e) If a suit is filed under this chapter against both a governmental unit
and any of its employees, the employees shall immediately be dismissed
on the filing of a motion by the governmental unit.
(f) 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.
Id. § 101.106(a), (b), (e), (f).
This election-of-remedies provision is “intended to ‘force a plaintiff to decide
at the outset whether an employee acted independently and is thus solely liable, or
acted within the general scope of his or her employment such that the governmental
unit is vicariously liable.’” Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017) (quoting
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Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)). The provision compels
“the expedient dismissal of governmental employees when suit should have been
brought against the government.” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d
350, 355 (Tex. 2013). This legislative mandate is meant to “‘reduc[e] the resources that
the government and its employees must use in defending redundant litigation and
alternative theories of recovery.’” Alexander v. Walker, 435 S.W.3d 789, 790 (Tex.
2014) (quoting Garcia, 253 S.W.3d at 657).
Here, Slaven sued government employees—Livingston, Stephens, and Clark—
and those employees invoked section 101.106(f)’s protections. Under subsection (f), a
defendant is entitled to a dismissal on proof that the plaintiff’s suit (1) was based on
conduct within the scope of the defendant’s employment with a governmental unit
and (2) could have been brought against the governmental unit under the TTCA. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Anderson v. Bessman, 365 S.W.3d 119,
124 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Franka v Velasquez,
332 S.W.3d 367, 369 (Tex. 2011)). The first component encompasses two questions.
First, was the defendant an employee of a governmental unit? And second, do the
alleged acts fall within the scope of that employment at the relevant time? Anderson,
365 S.W.3d at 124. The statute strongly favors dismissing governmental employees. Id.
In his petition, Slaven identifies all three defendants as working for the TDCJ,
thus conceding that all three were employees of a governmental unit. See Franka,
332 S.W.3d at 372.
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As for the second question, the TTCA 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 competent authority.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.001(5). And “public officials act within the scope of their authority if they are
discharging the duties generally assigned to them.” 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 to which the official has been assigned, even if the official errs in
completing the task.” Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San Antonio
2013, no pet.).
In their motion, Livingston, Stephens, and Clark alleged that Slaven’s petition
conceded they were acting under the general scope of their employment as TDCJ
administrators. The act about which Slaven complains is Livingston’s, Stephens’s, and
Clark’s interpretation of the December 29, 2011 order as authorizing 50%
withdrawals instead of 10% withdrawals. Even if they were incorrect, this decision
falls within the scope of their employment. See Ballantyne, 144 S.W.3d at 424; Lopez,
414 S.W.3d at 894.
The only remaining question is whether Slaven could have brought his claims
against the government itself. “Under Texas law, a suit against a government
employee in his official capacity is a suit against his government employer . . . .”
Franka, 332 S.W.3d at 382. For section 101.106 purposes, any tort claim against the
24
government falls under the TTCA. Id. at 375. This is true even when the TTCA does
not waive immunity. Id. at 375, 379–80, 385. Because Slaven’s tort claims arose from
the scope of Livingston’s, Stephens’s, and Clark’s employment, the defendant
employees properly invoked subsection (f). See id. at 381.
The only exception to this rule is if the employee acted ultra vires. Id. at 382.
Slaven appears to argue that the ultra vires exception applies because Livingston,
Stephens, and primarily Clark allegedly acted outside the scope of their authority by
interpreting the trial court’s December 29, 2011 order in a manner inconsistent with
our opinion construing it to mean that the maximum withdrawal was 10% total. See id.
at 382–83; Slaven, 2012 WL 5535603, at *1. But the record does not show an ultra
vires act. To fall within this exception, a plaintiff must not attack a governmental
officer’s exercise of discretion but must, instead, allege and ultimately prove that the
officer acted without legal authority or failed to perform a purely ministerial act. City of
El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
As an overarching matter, the only way Livingston, Stephens, and Clark
become embroiled in this dispute is through the Inmate Trust Fund. Although in his
petition Slaven speculated that the three might be “unjustly enriching themselves
and/or the State” with interest off his trust account, he acknowledged in his
summary-judgment response that he was aware that the “funds” or interest from the
inmate account were used to defray the costs of maintaining and administering the
trust fund. Everything in the record shows that Livingston, Stephens, and Clark were
25
administering the trust fund and that Slaven’s dispute is with how they were doing it.
“Certainly, public officials may err in the performance of their duties.” Ballantyne,
144 S.W.3d at 424; see Lopez, 414 S.W.3d at 894. The government code appears to
anticipate mistakes when administering the Inmate Trust Fund. See Tex. Gov’t Code
Ann. § 501.014(e). At best, Slaven has shown that they acted erroneously, not that
they acted ultra vires, something that is quite different.
C. Slaven does not attack the trial court’s declaratory-judgment ruling on
appeal.
In Slaven’s fifth cause of action, he sought a declaratory judgment. In their
summary-judgment motion, Livingston, Stephens, and Clark argued that the Eleventh
Amendment barred Slaven from getting such relief. U.S. Const. amend. XI. In
Slaven’s brief to us, although he acknowledges this argument when describing what
happened in the trial court, he never challenges the trial court’s ruling. We hold that
Slaven does not contest the trial court’s summary judgment disposing of this claim.
See Bankhead v. Maddox, 135 S.W.3d 162, 163–64 (Tex. App.—Tyler 2004, no pet.)
(“In its review of a civil matter, an appellate court has no discretion to fabricate an
issue not raised in the appellant’s brief . . . .”).
V. Conclusion
We reverse the summary judgment only to the extent it dismissed Slaven’s
42 U.S.C. § 1983 claim based on the alleged violation under Texas Constitution article
26
I, section 19. We otherwise affirm the trial court’s summary judgment on all other
claims.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: February 28, 2019
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