                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-14-00339-CV
                          ____________________

              CHRISTOPHER KARONE TURNER, Appellant

                                       V.

   CARLOS D. DELGADO, JAMES GARLAND, AND ALVIN HARRIS,
                         Appellees
_______________________________________________________         ______________

                   On Appeal from the 411th District Court
                            Polk County, Texas
                        Trial Cause No. CIV28315
________________________________________________________         _____________

                         MEMORANDUM OPINION

      Seeking a judgment for $301,000 in actual damages and $1,000 in punitive

damages under the Texas Theft Liability Act, Christopher Karone Turner sued

three employees of the Texas Department of Criminal Justice, Correctional

Institutions Division. See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005 (West

2011). The trial court dismissed Turner’s suit. See Tex. Civ. Prac. & Rem. Code

Ann. § 14.010 (West 2002). In his appeal, Turner complains the trial court abused


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its discretion by denying his motion for a default judgment, by denying his motion

to vacate the judgment and reinstate the case, by dismissing his claim on the basis

that he failed to comply with requirements that apply to filings by indigent

inmates, and by granting the motion to dismiss filed by the employees of the

Department of Criminal Justice. We affirm the judgment of dismissal, which we

note was without prejudice. See Ham v. Stephens, No. 01-15-00036-CV, 2015 WL

6081815, at *3 (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, no pet. h.) (mem.

op.) (holding that the dismissal of a prisoner’s suit pursuant to the court’s authority

under Chapter 14 of the Texas Civil Practice and Remedies Code is without

prejudice where the dismissal order is silent on the issue).

                                     Background

      In his original petition, Turner alleged that Sergeant Garland and Lieutenant

Harris moved him to a prehearing detention facility in another building in his

prison. According to Turner, Garland and Harris refused to allow him to take his

property with him to the building when he was being moved, and they ordered

Correctional Officer Delgado to take his property, inventory it, and place it in a

room in a specific building where he understood it was to be stored. According to

Turner, the property was removed from the room he was living in before he was

moved and later, it was never returned to him. Turner also claims that Delgado

                                          2
never turned in the inventory on his property. Turner contends that the Texas

Department of Criminal Justice, based on its policies, was required to reimburse or

replace his lost or stolen property; however, he claims the grievances that he filed

regarding the property were either suppressed or denied.1

      In May 2014, Turner filed a motion to default Delgado, Garland, and Harris

on the basis that they had failed to file answers. Turner’s motion was denied. In

June 2014, Delgado, Garland, and Harris answered Turner’s suit; on the date they

filed their answers, they moved to dismiss Turner’s suit on the basis that it was

frivolous. Five days after they filed their motion to dismiss, the trial court

dismissed Turner’s claims. The trial court’s judgment states that it dismissed

Turner’s suit because he failed “to comply with Chapter 14 of the Texas Civil

Practice and Remedies Code.”




      1
        Turner attached an unsworn declaration to his petition that was designed to
show that he filed a Step 1 and a Step 2 grievance with the Texas Department of
Criminal Justice regarding his property. In his Step 1 grievance, Turner alleged
that the officer in charge of the property room where Turner understood his
property was to be taken deprived him of his property. However, Turner’s Step 1
grievance does not include a complaint against any of the defendants in this case.
In Turner’s Step 2 grievance, he mentioned that Garland told him that he ordered
Delgado to move Turner’s property into a certain building where it was to be
stored. The grievances reflect that they were denied, as the Department found that
Turner provided insufficient evidence to substantiate his claims about his property.
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                            Denial of Default Judgment

       In issue one, Turner contends the trial court abused its discretion by denying

his motion seeking a default judgment. However, at the time the trial court denied

Turner’s motion, the evidence before the court did not show the defendants had

been served with citation as required under Rule 106 of the Texas Rules of Civil

Procedure. Because Turner failed to establish that the defendants were properly

served, we hold the trial court properly denied Turner’s motion. We overrule issue

one.

                            Motion to Vacate Judgment

       In issue two, Turner contends the trial court abused its discretion when it

denied his motion to vacate the judgment and denied his request to reinstate the

case on the court’s docket. According to Turner, the trial court should not have

ruled on the defendants’ motion to dismiss before he was properly served with the

motion. Turner also contends the trial court lacked jurisdiction over the

defendants’ motion to dismiss because it was not served on him before the motion

was granted.

       In a case involving a prisoner, a trial court is not required to wait on the

defendants to file a motion to dismiss before it may dismiss a prisoner’s case. See

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (West 2002) (providing that a

                                          4
court may dismiss a prisoner’s claim “either before or after service of process” on

five grounds, one of which includes cases in which the trial court finds the claim to

be “frivolous or malicious”). A case is frivolous if it has no arguable basis in law.

Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010, no pet.). “An

inmate who brings a claim falling within the scope of Chapter 14 has no right to

notice of a motion to dismiss, nor to a mandatory hearing.” Morris v. Tarlton, No.

11-13-00199-CV, 2015 WL 4523531, at *1 (Tex. App.—Eastland July 23, 2015,

no pet. h.) (mem. op.); see also Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex.

App.—Fort Worth 2009, pet. denied) (“an inmate who brings a claim falling within

the scope of chapter fourteen has no right to notice of a motion to dismiss, nor to a

mandatory hearing”); Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—

Beaumont 2001, no pet.) (“the inmate had no right to notice of a motion to dismiss

or to an opportunity to amend”). For the reasons we explain in resolving issue

three, Turner’s claims against Delgado, Garland, and Harris were frivolous. We

hold the trial court did not abuse its discretion by denying Turner’s motion to

vacate or by denying his motion to reinstate the case. We overrule issue two.

                               Chapter 14 Dismissal

      In issue three, Turner argues that the trial court abused its discretion by

dismissing his case as frivolous. According to Turner, he sued the officers that took

                                         5
his property based on acts that were not within the scope of their duties as

correctional officers. However, in our opinion, the trial court did not abuse its

discretion by interpreting Turner’s petition to allege claims grounded on the

officers’ duties as correctional officers.

      Whether a state employee is acting within the scope of his or her

employment for purposes of the Tort Claims Act depends upon whether the

employee is performing duties generally assigned to them when the tort occurs.

Lopez v. Serna, 414 S.W.3d 890, 894-95 (Tex. App.—San Antonio 2013, no pet.).

“‘Scope of employment’ means the performance for a governmental unit of the

duties of an employee’s office or employment and includes being in or about the

performance of a task lawfully assigned to an employee by competent authority.”

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5) (West Supp. 2014). “An

employee’s act is not within the scope of employment when it occurs within an

independent course of conduct not intended by the employee to serve any purpose

of the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (quoting

Restatement (Third) of Agency § 7.07(2) (2006)).

      In his petition, Turner alleged that department policy required the employees

of the Department of Criminal Justice to pack, inventory, secure and return inmate-

owned property. He complained in his petition that the theft of his property arose

                                             6
from the negligence of Delgado, Garland, and Harris to implement and perform

their obligations based on the policies of the Department of Criminal Justice.

Turner pled that the officers’ conduct, which resulted in the loss of his property,

was subject to the prison grievance system. See generally Tex. Gov’t Code Ann. §

501.008 (West 2012). However, “[a] remedy provided by the grievance system is

the exclusive administrative remedy available to an inmate for a claim for relief

against the department that arises while the inmate is housed in a facility operated

by the department[.]” Id.

      In our opinion, the trial court reasonably viewed Turner’s petition as

alleging claims against the officers that related to their acts as employees of the

Department of Criminal Justice. As such, the trial court’s interpretation that

Turner’s claims were claims that he could have brought against the Department of

Criminal Justice was not unreasonable. See Lopez, 414 S.W.3d at 895.

      When the employees of a governmental agency are named as defendants in a

suit, and where the claims alleged are claims that could have been brought against

the agency, the suit is considered to be a suit “against the employee in the

employee’s official capacity only.” Tex. Civ. Prac. & Rem. Code Ann. §

101.106(f) (West 2011).




                                         7
      In his brief, Turner focuses on the claim he brought against the three officers

under the Theft Liability Act, and he says he did not sue them under the Tort

Claims Act. Nonetheless, Turner’s claims, as they were alleged in his petition, are

claims that could have been brought against the Department. “A plaintiff cannot,

through artful pleading, make a common law tort claim a statutory claim under the

Theft Liability Act.” Mason v. Wood, No. 09-12-00246-CV, 2013 WL 1088735, at

*3 (Tex. App.—Beaumont Mar. 14, 2013, no pet.) (mem. op.).

      Turner argues that he should be allowed to proceed against the defendants

for mishandling his property because theft is not a claim for which the Legislature

waived the State’s sovereign immunity under the Tort Claims Act. However, a suit

against an employee of a government agency that is based on acts within the

general scope of the agency’s employment relationship is the equivalent of a suit

against the agency’s employee in his official capacity regardless of whether the

defendant can recover on the claim. See Franka v. Velasquez, 332 S.W.3d 367, 382

n.68 (Tex. 2011). “[A]ll tort theories alleged against a governmental unit, whether

it is sued alone or together with its employees, are assumed to be ‘under [the Tort

Claims Act]’ for purposes of section 101.106.” Mission Consol. Indep. School

Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).




                                         8
      In this case, the trial court apparently concluded that Turner was seeking to

sue Delgado, Garland, and Harris under the Theft Liability Act for activities that

allegedly occurred that fell within the scope of their employment as officers

employed by the Texas Department of Criminal Justice. However, the Theft

Liability Act does not include a waiver of immunity for a state agency of the

agency’s employees for conduct that was within the course of the employees’

employment. Lopez, 414 S.W.3d at 896. Since Turner cannot sue the three officers

under the Theft Liability Act for acting within the scope of their employment as

employees of the Department of Criminal Justice in removing Turner’s property,

the trial court properly concluded that Turner’s claims, as alleged, were frivolous.

We overrule issue three, and we affirm the trial court’s judgment dismissing

Turner’s suit without prejudice.

      AFFIRMED.




                                             ________________________________
                                                      HOLLIS HORTON
                                                           Justice

Submitted on March 23, 2015
Opinion Delivered November 19, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.

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