                                   NO. 12-19-00004-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 JAMES J. WHITE,                                    §      APPEAL FROM THE 241ST
 APPELLANT

 V.                                                 §      JUDICIAL DISTRICT COURT

 LARRY SMITH, IRA EARLS AND
 F.N.U. BENSON,                                     §      SMITH COUNTY, TEXAS
 APPELLEES

                                   MEMORANDUM OPINION
       James J. White, appearing pro se, appeals from an adverse summary judgment rendered in
favor of Appellees Larry Smith, Ira Earls, and Clint Benson in White’s suit for damages. In two
issues, White contends the trial court erred in granting the summary judgment. We modify the
judgment and affirm as modified.


                                           BACKGROUND
       On December 25, 2012, White’s son disclosed that White’s father sexually abused him.
The abuse was reported to a social worker on May 28, 2013, who notified the Smith County
Sheriff’s office. Appellee Larry Smith is the Smith County Sheriff. Appellees Earls and Benson
are the deputies who investigated the case. On June 15, 2013, White shot and killed his father.
White is currently incarcerated for that offense.
       On January 19, 2016, White brought suit against Appellees, citing the Texas Tort Claims
Act and numerous sections of the Texas constitution, and alleging the denial of statutory
protections provided in Texas Code of Criminal Procedure Articles 5.04 and 5.045. He sought
monetary relief of at least $200,000 and not more than $1,000,000 and exemplary damages.
       In their motion for summary judgment, Appellees asserted that the suit is an impermissible
collateral attack on White’s conviction and an attempt to shift responsibility for the crime; the tort
claims are barred by the two-year statute of limitations; White pleaded no facts to support his
constitutional claims; the Texas constitution does not permit a private cause of action for damages;
there is no private civil cause of action for violations of the code of criminal procedure; and official
immunity.
       The trial court granted Appellees’ motion for summary judgment, ordering that White take
nothing. This appeal ensued.


                                           SUMMARY JUDGMENT
       White lists two issues asserting that the trial court abused its discretion and erred in granting
Appellees’ motion for summary judgment. His arguments address each of the grounds asserted in
their motion.
Standard of Review
       A party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c). A defendant who conclusively negates at least one of the essential elements of
the cause of action or conclusively establishes an affirmative defense is entitled to summary
judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the defendant
establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to
present evidence raising a genuine issue of material fact. Simulis, L.L.C. v. Gen. Elec. Capital
Corp., 439 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2014, no pet.). To determine if
there is a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could do so, and disregarding contrary
evidence unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence raises a genuine issue of fact if
reasonable and fair minded jurors could differ in their conclusions in light of all the summary
judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007)
(per curiam).
Tort Claim
       White asserts that the relevant time period during which his causes of action arose was
between May 28, 2013, when the abuse claim was reported, and June 15, 2013, when he shot his
father. Appellees asserted in their motion that White’s tort claim, which was filed January 19,



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2016, is barred by limitations. White argues that the four-year statute of limitations applies to his
claim, not the two-year statute of limitations. He asserts that a fiduciary relationship was created
by express agreement of the parties, Appellees were acting as his agent, and he asserted a cause of
action for breach of fiduciary duty. Further, he contends, he “met the filing deadline for his tort
claim.”
          In his petition, White asserted that he filed “pursuant to the Texas Tort Claims Act in
Chapter 101 of the Civil Practice and Remedies Code.” In his response to the motion for summary
judgment, he did not raise the argument that he was asserting a claim for breach of fiduciary duty.
“Issues not expressly presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c).
          To the extent White pleaded a claim pursuant to the Texas Tort Claims Act, that claim is
barred by limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2019) (regarding
potential governmental liability for property damage, personal injury, and death); id. § 16.003
(West 2017) (providing that the statute of limitations for property damage, personal injury, and an
action for injury resulting in death is two years).
Constitutional Claims
          White contends that the Texas constitution provides grounds to assert a cause of action
where a governmental entity interferes with an individual’s constitutionally protected rights and
that equitable remedies may be enforced. He claims he was denied protections promised to him,
he suffered an injury, and should be awarded damages.
          White pleaded for money damages, not equitable relief. As Appellees asserted in their
motion for summary judgment, there is no cause of action for monetary relief for the violation of
state constitutional rights. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148, 149-50 (Tex.
1995); Nkansah v. Univ. of Tex at Arlington, No. 02-10-00322-CV, 2011 WL 4916355, at *5
(Tex. App.−Fort Worth Oct. 13, 2011, pet. denied) (per curiam) (mem. op. on reh’g); Univ. of
Tex. Sys. v. Courtney, 946 S.W.2d 464, 469 (Tex. App.−Fort Worth 1997, writ denied) (op. on
reh’g); Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, 873 (Tex. App.−Amarillo 1993, writ
denied).
Code of Criminal Procedure Claims
          White contends that he alleged a private cause of action derived from the Tort Claims Act
and Articles 5.04 and 5.045 of the code of criminal procedure. He further argues that his cause of



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action is derived from Appellees’ breach of their statutorily mandated duties. He claims that a
cause of action is established because facts show his right to be given written notice of Article 5.04
was violated by Appellees.
        When a private cause of action is alleged to derive from a statutory provision, we ascertain
the legislature’s intent. Brown v. De La Cruz, 156 S.W.3d 560, 563 (Tex. 2004). We begin with
the plain and common meaning of the statute’s words, and we review the entire act to determine
legislative intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We
imply causes of action only when a legislative intent to do so is clear from the language of the
statute. Brown, 156 S.W.3d at 567.
        Article 5.04 names the primary duties of a peace officer who investigates a family violence
allegation and specifically provides that the investigating peace officer “shall advise any possible
adult victim of all reasonable means to prevent further family violence, including giving written
notice of a victim’s legal rights and remedies and of the availability of shelter or other community
services for family violence victims.” TEX. CODE CRIM. PROC. ANN. art. 5.04 (West Supp. 2018).
Article 5.045 provides that a peace officer, at his discretion, may stay with a victim of family
violence to protect the victim and allow the victim to retrieve personal property. Id. art. 5.054(a)
(West 2005). The statute goes on to specifically state that a peace officer who provides assistance
under subsection (a) is not civilly liable for his act or omission arising in connection with providing
assistance or determining whether to provide assistance, and he is neither civilly nor criminally
liable for the wrongful appropriation of any personal property by the victim. Id. art. 5.054(b).
        Neither Article 5.04 nor Article 5.054 explicitly created a private cause of action. While
Article 5.04 identifies specified duties peace officers must perform, it does not provide for any
penalty for the failure to comply.        Even assuming the statute failed to protect intended
beneficiaries, this is insufficient to imply a right of enforcement. See Brown, 156 S.W.3d at 567.
Article 5.054 specifically states officers are not civilly liable for acts or omissions arising from
their actions in providing assistance pursuant to this article and not liable civilly or criminally if a
victim misappropriates personal property. We conclude there is no clear legislative intent to
provide a private cause of action for a peace officer’s failure to perform the duties enumerated in
Articles 5.04 and 5.045, including a failure to provide the statutory notice to adult victims of family
violence.




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                                                  CONCLUSION
         Appellees proved as a matter of law that they are entitled to summary judgment on each of
White’s causes of action. See Fernandez, 315 S.W.3d at 508. White did not present evidence
raising a fact question. Accordingly, the trial court did not err in granting Appellees’ motion for
summary judgment. We overrule White’s issues one and two.
         The trial court’s judgment ordered White to pay all costs. Although White did not complain
of this ruling on appeal, we consider it sua sponte because it touches on a jurisdictional question,
and jurisdiction is fundamental in nature. See Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d
759, 763 (Tex. App.−Houston [14th Dist.] 2008, no pet.). Texas Rule of Civil Procedure 145
provides that a party who files a statement of inability to pay costs cannot be required to pay costs
except by order of the court as provided by Rule 145. TEX. R. CIV. P. 145. The court may order
the declarant to pay costs after notice and an oral evidentiary hearing. Id. 145(f). The judgment
may not require the declarant to pay costs unless the trial court issued an order under Rule 145(f)
or the party obtained a monetary recovery which the court orders to be applied toward payment of
costs. Id. 145(h). Moreover, in the absence of a 145(f) order, a provision in the judgment
purporting to order the declarant to pay costs is void. Id. An uncontested affidavit of inability to
pay is conclusive as a matter of law. Campbell v. Wilder, 487 S.W.3d 146, 151 (Tex. 2016).
         White filed a statement of inability to pay supported by documentary proof. Nothing in
the record indicates that his statement was contested or that the trial court held an evidentiary
hearing on the question or entered an order under Rule 145 ordering White to pay costs.
Accordingly, the portion of the final judgment ordering White to pay costs is void. TEX. R. CIV.
P. 145. If a ruling is void, the appellate court lacks jurisdiction to review the ruling’s merits. See
Phillips v. Bramlett, 407 S.W.3d 229, 236 (Tex. 2013). The appellate court must declare the ruling
void or vacate it. See Doan v. TransCanada Keystone Pipeline, LP, 542 S.W.3d 794, 806 (Tex.
App.−Houston [14th Dist.] 2018, no pet.). We therefore modify the final judgment by deleting the
order for White to pay costs.
         As modified, we affirm the trial court’s judgment.
                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                                   (PUBLISH)



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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT
                                         OCTOBER 31, 2019


                                        NO. 12-19-00004-CV


                                JAMES J. WHITE,
                                     Appellant
                                        V.
                    LARRY SMITH, IRA EARLS AND F.N.U. BENSON,
                                    Appellees


                                Appeal from the 241st District Court
                        of Smith County, Texas (Tr.Ct.No. 16-0130-C/B)

                   THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was error in the judgment
of the court below. In accordance with this court’s opinion of this date, the judgment of the trial
court is modified as follows:
                   We DELETE that portion of the trial court’s judgment ordering that all costs
are taxed against Plaintiff James J. White.
                   It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below is AFFIRMED as modified, and that the decision be certified to the court below
for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
