                                                                                       ACCEPTED
                                                                                   07-15-00090-cv
                                                                     SEVENTH COURT OF APPEALS
                                                                               AMARILLO, TEXAS
                                                                             6/22/2015 7:06:57 PM
                                                                                 Vivian Long, Clerk



                   No. 07-15-00090-CV
   _______________________________________________
                                               FILED IN
                                        7th COURT OF APPEALS
          IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS
 __________________________________________________
                                        6/22/2015 7:06:57 PM
                                             VIVIAN LONG
                  EVANGELOS PAGONIS             CLERK
                            Appellant-Petitioner

                                     v.

                  CATHERINE THOMAS
                   Appellee-Respondent
  ________________________________________________

            On appeal from the 69th Judicial District
             Court of Hartley County, Texas; No. 645
  _________________________________________________

                  BRIEF OF APPELLEE
  _________________________________________________


KEN PAXTON                                     JOHNATHAN STONE
Attorney General of Texas                      Assistant Attorney General
                                               Texas Bar No. 24071779

CHARLES ROY                                    Post Office Box 12548
First Assistant Attorney General               Austin, Texas 78711-2548
                                               Telephone: (512) 463-2080
                                               Facsimile: (512) 936-2109
JAMES DAVIS
Deputy Attorney General for Civil Litigation

                                               * No oral argument requested
KAREN D. MATLOCK
Chief of Law Enforcement Defense Division


                    ATTORNEYS FOR APPELLEE
           IDENTITIES OF PARTIES AND COUNSEL

Appellant

Evangelos Pagonis
TDCJ No. 1626253
Dalhart Unit
11950 FM 998
Dalhart, TX 79022
Pro Se Appellant

Appellee

Catherine Thomas
c/o Johnathan Stone
Law Enforcement Defense Division
Office of the Attorney General of Texas
Post Office Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2080
Facsimile: (512) 936-2109

Counsel for Appellee

Johnathan Stone
Assistant Attorney General
Texas Bar No. 24071779

Law Enforcement Defense Division
Office of the Attorney General of Texas
Post Office Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2080
Facsimile: (512) 936-2109
Johnathan.Stone@texasattorneygeneral.gov




                                  ii
                               TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................... IV
BRIEF OF APPELLEE ................................................................................... 1
STATEMENT OF THE CASE ........................................................................ 1
ISSUES PRESENTED ................................................................................... 2
STATEMENT OF THE FACTS ...................................................................... 3
SUMMARY OF THE ARGUMENT................................................................ 4
ARGUMENT.................................................................................................. 4

I.      The trial courts did not abuse their discretion in
        dismissing Appellant’s suit where he failed to perfect
        his appeal from the Justice Court by seeking and
        obtaining permission to proceed in forma pauperis. ............ 6
II.     This Court should dismiss Appellant’s claims pursuant
        to the doctrine of de minimis non curat lex where this
        suit arises from the loss of an expired wall calendar. ............ 7
III.    Sovereign immunity bars Appellants theft claims
        where there is no waiver for intentional torts......................... 9
        A.      Appellant’s claims can only proceed against Appellee in
                her official capacity. .................................................................... 9
        B.      Appellant’s claims are barred by sovereign immunity
                where there is no waiver for intentional torts. ......................... 10

CONCLUSION............................................................................................. 12
NOTICE OF ELECTRONIC FILING ........................................................... 13
CERTIFICATE OF COMPLIANCE .............................................................. 13
CERTIFICATE OF SERVICE....................................................................... 13


                                                iii
                              INDEX OF AUTHORITIES

Cases
Birdo v. Ament, 814 S.W.2d 808, 809 (Tex. App. 1991) ............................... 6
Brown v. Cockrell, No. 07-03-00139-CV, 2005 Tex. App. LEXIS 2131,
at *5-6 (Tex.App.—Amarillo Mar. 21, 2005) (mem. op.) .............................. 7
City of Waco v. Williams, 209 S.W.3d 216, 221-22 (Tex. App.—Waco
2006) ............................................................................................................ 11
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.
1985). ............................................................................................................. 5
Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011) ................................. 9
Hammonds v. Camp, 2004 Tex. App. LEXIS 3293, *5 (Tex. App.
Amarillo Apr. 12, 2004) ................................................................................ 8
Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. 1996). ............................ 4
Jones v. Copeland, 2012 Tex. App. LEXIS 6889, *14-16 (Tex. App.
Amarillo Aug. 16, 2012). ................................................................................ 9
Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App. 2008)....................... 5
Montana v. Patterson, 894 S.W.2d 812, 814 (Tex. App. 1994). .................... 5
Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 791 (Tex. App.—
Dallas 2012, pet. denied). ............................................................................ 10
Pennington v. Peterson, No. 13-96-00344-CV, 1998 Tex. App. LEXIS
573, at *5-6 (Tex. App.—Corpus Christi Jan. 29, 1998) ................................ 8
Smith v. Stevens, 822 S.W.2d 152, 152 (Tex. App.—Houston [1st
Dist.] 1991) .................................................................................................... 8
Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 577 & 580 (Tex.
2001) ............................................................................................................ 11
Thompson v. Mannix, 814 S.W.2d 811, 812 (Tex. App. 1991) ....................... 8
Vincent v. West Texas State University, 895 S.W.2d 469, 472 (Tex.
                                                     iv
App.—Amarillo 1995). ................................................................................. 10
Walker v. Gonzales Cnty. Sheriff's Dep't, 35 S.W.3d 157, 162 (Tex.
App. 2000). ................................................................................................... 5

Statutes
Civ. Prac. & Rem. § 101.057(2) ..................................................................... 11
Civ. Prac. & Rem. § 101.106(f) ....................................................................... 9
Tex. Civ. Prac. & Rem. Code § 14.003(b) ...................................................... 5
Tex. R. Civ. P. 506 ......................................................................................... 6
Tex. R. Civ. P. 506(d) .................................................................................... 6
Tex. R. Civ. P. 506(d)(1) ................................................................................ 6
Tex. R. Civ. P. 506(g)..................................................................................... 7
Tex. R. Civ. P. 506(h) .................................................................................... 6

Other Authorities
Black's Law Dictionary 496 (9th ed. 2009) ................................................... 7




                                                   v
                   No. 07-15-00090-CV
   _______________________________________________

          IN THE SEVENTH COURT OF APPEALS
 __________________________________________________

                          EVANGELOS PAGONIS
                           Appellant-Petitioner

                                      v.

                   CATHERINE THOMAS
                    Appellee-Respondent
   ________________________________________________

            On appeal from the 69th Judicial District
             Court of Hartley County, Texas; No. 645
  _________________________________________________

                  BRIEF OF APPELLEE
  _________________________________________________

     Appellee, through the Office of the Attorney General, submits this

brief in support of the Justice Court, County Court at Law, and District

Courts decisions dismissing this case pursuant to Chapter Fourteen.

Appellee respectfully offers the following in support:

                      STATEMENT OF THE CASE

     Appellant-Plaintiff Evangelos Pagonis is an inmate of the Texas

Department of Criminal Justice (“TDCJ”) incarcerated at the Dalhart Unit

in Dalhart, Texas. [Clerk’s Record (“C.R.”) at 55]. Appellant brought this

suit pro se and in forma pauperis. [C.R. at 49]. He sued Defendant-

                                      1
Appellee Catherine Thomas for theft for the alleged loss of a calendar.

[C.R. at 52].

      Appellant claims that Appellee stole his 2011 calendar on March 17,

2013. [C.R. at 62]. Specifically, he alleges that she was conducting a search

of every cell on his wing for a pair of missing keys. [C.R. at 62]. Appellant

claims that he witnessed Appellee enter his cell alone to conduct the search.

[C.R. at 62]. He claims that he discovered his calendar missing from his

legal documents folder after she finished searching his cell. [C.R. at 62].

The calendar allegedly contained important medial appointment dates

related to a separate lawsuit. [C.R. at 52]. He believes that Appellee stole

his calendar in retaliation for filing a lawsuit against another officer. [C.R.

at 62]. Appellant is suing Appellee in her individual capacity. [C.R. at 51].

                          ISSUES PRESENTED

      I.    Did the trial courts abuse their discretion in
            dismissing Appellant’s suit where he failed to perfect
            his appeal from the Justice Court by seeking and
            obtaining permission to proceed in forma pauperis?

      II.   Should this Court should dismiss Appellant’s claims
            pursuant to the doctrine of de minimis non curat lex
            where this suit arises from the loss of an expired wall
            calendar?

      III. Does sovereign immunity bars Appellants theft
           claims where there is no waiver for intentional torts?



                                       2
                     STATEMENT OF THE FACTS

     On July 26, 2013, Appellant brought a Theft Liability Act claim in the

Justice Court of Hartley County. [C.R. at 51]. Appellee filed and Answer

and a Chapter Fourteen Motion to Dismiss on September 20, 2013. [C.R.

at 16-28]. On September 26, 2013, the presiding judge signed a Final

Judgment dismissing Appellant’s claims pursuant to Chapter Fourteen.

[C.R. at 29]. Appellant appealed the ruling to the Hartley County Court of

Law. [C.R. at 6].

     On August 27, 2014, Appellant filed an Application for Writ of

Mandamus with the 69th District Court of Hartley County asking the Court

to order the Clerk to accept his Notice of Appeal. [C.R. at 132-37]. On

September 18, 2014, the District Court entered an Order denying the

Application because he failed to perfect his appeal from the Justice Court.

[C.R. at 138]. The Clerk reminded Appellant on October 29, 2014, that he

had not perfected his appeal from the Justice Court. [C.R. at 144]. On

December 5, 2014, the County Court entered a Final Judgment dismissing

Appellant’s claims pursuant to Chapter Fourteen. [C.R. at 131]. Appellant

filed this appeal on December 9, 2014.

     A review of internal document tracking records, the Record on

Appeal, and Appellant’s Certificate of Service reveals that he failed to send

                                      3
Appellee courtesy copies in the majority of his filings this lawsuit.

                      SUMMARY OF THE ARGUMENT

       The trial courts did not abuse their discretion when they dismissed

Appellant’s suit since he failed to properly perfect his appeal to the County

Court by seeking and obtaining permission from the Justice Court to appeal

in forma pauperis.         This Court should also dismiss Appellant claims

pursuant to the doctrine of de minimis non curat lex because this lawsuit

arises from the loss of an expired calendar. Finally, Appellant’s claims are

barred by the sovereign immunity because they arose from the loss of his

calendar during a cell search that was within the scope of Appellee’s

employment.

                                    ARGUMENT

       The Court reviews a dismissal order in lawsuits of this nature for an

abuse of discretion.1       A trial court abuses its discretion when it acts

arbitrarily, unreasonably, or without reference to any guiding rules and

principles.2     When the trial court does not specify the grounds for

dismissal, the appellate court will affirm the decision if any theory is

meritorious.3


1   Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. 1996).
2   Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).
3   Walker v. Gonzales Cnty. Sheriff's Dep't, 35 S.W.3d 157, 162 (Tex. App. 2000).

                                            4
        Trial courts have broad discretion to determine whether a case

    should be dismissed because (1) prisoners have a strong incentive to

    litigate, (2) the government bears the cost of an in forma pauperis suit,

    (3) sanctions are not effective, and (4) the dismissal of unmeritorious

    claims accrues to the benefit of state officials, courts, and meritorious

    claimants.4

        To determine whether a lawsuit is malicious or frivolous, a court

    may consider whether (1) the realistic chance of ultimate success is

    slight, (2) there is no arguable basis for the claim in law or in fact, (3) it

    is clear that the party cannot prove facts that will support the claim, or

    (4) the claim is substantially similar to a previous claim filed by the

    inmate in that the claim arises from the same operative facts.5 When an

    inmate claims relief under an indisputably meritless legal theory, the

    claim has no arguable basis in law.6 A suit in which the defendants are

    immune from suit provides an example of such a meritless legal theory.7




4    Montana v. Patterson, 894 S.W.2d 812, 814 (Tex. App. 1994).
5    Tex. Civ. Prac. & Rem. Code § 14.003(b).
6    Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App. 2008).

                                           5
        I.    The trial courts did not abuse their discretion in
              dismissing Appellant’s suit where he failed to perfect
              his appeal from the Justice Court by seeking and
              obtaining permission to proceed in forma pauperis.

        Texas Rules of Civil Procedure Rule 506 provides that to appeal a

decision from the Justice Court, an Appellant must pay a $500 bond

within twenty-one days of the Final Judgment.8 An Appellant that is

unable to furnish the bond may file a Statement of Inability to Pay.9 An

appeal from Justice Court is perfected when either the bond is furnished

or a Statement of Inability to Pay is filed in accordance with the rules.10

An appeal will not be dismissed for defects or irregularities in procedure,

either of form or substance, without allowing the Appellant, after seven

days' notice from the court, the opportunity to correct such defect.11 The

Appellant can perfect his appeal by filing another copy of his previous

Statement of Inability to Pay if he originally brought the suit in forma

pauperis.12

        The trial courts did not abuse their discretion in dismissing

Appellant’s suit where he failed to perfect his appeal from the Justice


7    Birdo v. Ament, 814 S.W.2d 808, 809 (Tex. App. 1991).
8    Tex. R. Civ. P. 506.
9    Tex. R. Civ. P. 506(d).
10   Tex. R. Civ. P. 506(h)
11   Tex. R. Civ. P. 506.
12   Tex. R. Civ. P. 506(d)(1).

                                           6
Court. Appellant cannot perfect his appeal in the Justice Court without

first filing a Statement of Inability to Pay or paying a $500 bond.13 On

September 18, 2014, the district court advised Appellant that he had not

perfected his appeal from the Justice Court. [C.R. at 138]. Appellant

failed to perfect his appeal within seven days of receiving notice. 14 The

district court waited seventy-eight days for Appellant to perfect his appeal

before dismissing his suit.          [C.R. at 131].     Appellant failed to file a

Statement of Inability to Pay in the Justice Court within seven days of

receiving notice that he had not perfected his appeal; consequently, the

trial courts did not abuse their discretion in dismissing his suit for failure

to perfect his appeal.

        II.    This Court should dismiss Appellant’s claims pursuant
               to the doctrine of de minimis non curat lex where this
               suit arises from the loss of an expired wall calendar.

        The doctrine of de minimis non curat lex — that is, "[t]he law does

not concern itself with trifles"— provides the Court with the authority to

dismiss as frivolous suits brought by inmates over the claimed

confiscation by prison employees of property having insignificant value. 15


13   Tex. R. Civ. P. 506.
14   Tex. R. Civ. P. 506(g).
15   Black's Law Dictionary 496 (9th ed. 2009); Brown v. Cockrell, No. 07-03-00139-CV,
     2005 Tex. App. LEXIS 2131, at *5-6 (Tex.App.—Amarillo Mar. 21, 2005) (mem. op.)
     (finding doctrine applicable when inmate sought recovery for confiscation of postage

                                            7
Any error associated with the dismissal would be harmless because the

amount of damages sought is insignificant.16

        This Court should dismiss Appellant’s appeal where the property

loss is de minimis.17 Appellant’s only justification for why his expired

2011 calendar had any value in 2013 was that contained important

medical dates in an a different lawsuit.              [C.R. at 62].      The lawsuit

Appellant claims he needed the calendar for was dismissed in 2012 for

failure to state a claim.18 Appellant did appeal the decision; however, he

filed his appellate brief in 2012 before the alleged loss of his calendar.19

Moreover, the Fifth Circuit affirmed the dismissal of Appellant’s suit a




     stamps); Hammonds v. Camp, 2004 Tex. App. LEXIS 3293, *5 (Tex. App. Amarillo
     Apr. 12, 2004) (applying doctrine when inmate sued to recover for loss of two shower
     shoes, two chess sets, and a sweatshirt); Pennington v. Peterson, No. 13-96-00344-
     CV, 1998 Tex. App. LEXIS 573, at *5-6 (Tex. App.—Corpus Christi Jan. 29, 1998)
     (concluding the law did not concern itself with inmate's claim seeking recovery of
     $3.15 for property confiscated upon arrival at new prison unit); Smith v. Stevens,
     822 S.W.2d 152, 152 (Tex. App.—Houston [1st Dist.] 1991) (concluding that the law
     was not concerned with claims involving the confiscation of a coffee bag and two
     packs of cigarettes); Thompson v. Mannix, 814 S.W.2d 811, 812 (Tex. App. 1991)
     (finding trial court could have invoked doctrine when inmate sought recovery for the
     conversion of five highlighters, an extension cord, four small wooden picture frames,
     a stainless steel pen and pencil set, a mirror, three hospital bracelets, and a fan).
16   See Hammonds, 2004 Tex. App. LEXIS 3293, at *5-6; Smith, 822 S.W.2d at 152.
17   Appellant seeks $100,000 in compensatory damages for the loss of his 2011
     calendar. [C.R. at 45].
18   Order of Dismissal, Pagonis v. TDCJ, et al., Civil Action No. 2:11-cv-00177 (T.X.N.D.
     – Amarillo, Sept. 11, 2012).
19   Appellant’s Brief, Pagonis v. TDCJ, et al., Cause No. 12-10980 (5th Cir. Nov. 13,
     2012).

                                             8
month after the alleged loss of his calendar.20 In Jones, this Court applied

the doctrine of de minimis non curat lex in an inmate suit involving the

alleged loss of a red rope folder, five pens, fourteen sheets of paper, two

and a half bags of coffee, and a padlock.21 Similarly, the Court should

apply the same doctrine in this suit where Appellant’s expired calendar

had no value.

        III. Sovereign immunity bars Appellants theft claims
             where there is no waiver for intentional torts.

               A.     Appellant’s claims can only proceed against Appellee in
                      her official capacity.

        Suits against a government employee in her individual capacity are

foreclosed if the employee was acting within the scope of her

employment.22 A suit is considered to be against the employee in the

employee's official capacity only if the suit (1) is filed against an employee

of a governmental unit based on conduct within the general scope of that

employee's employment, and (2) could have been brought under [the Texas

Tort Claims Act (“TTCA”)] against the governmental unit.23 Officials act




20   Judgment, Pagonis v. TDCJ, et al., Cause No. 12-10980 (5th Cir. Apr. 17, 2013).
21   Jones v. Copeland, 2012 Tex. App. LEXIS 6889, *14-16 (Tex. App. Amarillo Aug.
     16, 2012).
22   Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011); Civ. Prac. & Rem. § 101.106(f).
23   Tex. Civ. Prac. & Rem. Code § 101.106(f); Franka, 332 S.W.3d at 369.

                                             9
within the scope of employment if their acts fall within the duties generally

assigned to them.24

        Appellee can only be sued in her official capacity because the alleged

loss of Appellant’s calendar occurred while she was acting within the

scope of her employment.25 Appellant purportedly sued Appellee in her

individual capacity. [C.R. at 51]. He alleges in this suit that she stole or

destroyed his calendar during a search of his cell for a missing key. [C.R.

at 62]. There is no reasonable dispute the conducting cell searches is a

function within the scope of a correctional officers’ duties.26                Thus,

Appellant’s claims can only proceed against Appellee in her official

capacity where the alleged loss of his calendar occurred while she was

acting within the scope of her employment.

              B.     Appellant’s claims are barred by sovereign immunity
                     where there is no waiver for intentional torts.

        A suit against a governmental employee in their official capacity is,

in effect, a claim against the State itself; therefore, sovereign immunity

applies.27 Sovereign immunity deprives a trial court of subject matter


24   Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 791 (Tex. App.—Dallas 2012, pet.
     denied).
25   Id.
26   Franka, 332 S.W.3d at 369.
27   Vincent v. West Texas State University, 895 S.W.2d 469, 472 (Tex. App.—Amarillo
     1995).

                                           10
jurisdiction for lawsuits in which the state or certain governmental units

have been sued unless the state consents to suit.28 The TTCA provides a

waiver of sovereign immunity from suit when the claimant alleges

personal injury or death arising from the operation or use of a motor-

driven vehicle; however, there is no waiver for intentional torts.29 In

determining whether claims are barred by sovereign immunity, the court

looks to the substance of the claims alleged because governmental

immunity cannot be circumvented by artful pleading.30

         Appellant’s theft claim is barred by sovereign immunity because it is

an intentional tort. The TTCA does not waive sovereign immunity for

torts “arising out of assault, battery, false imprisonment, or any other

intentional tort…"31          Conversion and theft are intentional torts.32

Appellant alleges that Appellee stole or destroyed his 2011 calendar. [C.R.

at 52]. Thus, the trial courts did not abuse their discretion in dismissing

his claims where there is no waiver of sovereign immunity for intentional

torts.



28   Id.
29   Civ. Prac. & Rem. § 101.057(2) (Act does not apply to claims "arising out of assault,
     battery, false imprisonment, or any other intentional tort."
30   See Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 577 & 580 (Tex. 2001).
31   Tex. Civ. Prac. & Rem. Code § 101.057(2) (emphasis added); See City of Waco v.
     Williams, 209 S.W.3d 216, 221-22 (Tex. App.—Waco 2006).
32   Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 356-57 (Tex. App. 2000).

                                            11
                          CONCLUSION

     The trial courts did not abuse their discretion in dismissing

Appellant’s suit pursuant to Chapter Fourteen. The judgment should be

affirmed.

                          Respectfully submitted,

                          KEN PAXTON
                          Attorney General of Texas

                          CHARLES E. ROY
                          First Assistant Attorney General

                          JAMES E. DAVIS
                          Deputy Attorney General for Civil Litigation

                          KAREN D. MATLOCK
                          Assistant Attorney General
                          Chief, Law Enforcement Defense Division

                          /s/ Johnathan Stone
                          JOHNATHAN STONE
                          Assistant Attorney General
                          Attorney-In-Charge
                          Texas State Bar No. 24071779
                          johnathan.stone@texasattorneygeneral.gov

                          Law Enforcement Defense Division
                          Office of the Attorney General
                          P. O. Box 12548, Capitol Station
                          Austin, Texas 78711-2548
                          Telephone: (512) 463-2080
                          Facsimile: (512) 936-2109

                          ATTORNEYS FOR APPELLEE



                                 12
                   NOTICE OF ELECTRONIC FILING

      I, Johnathan Stone, Assistant Attorney General of Texas, do

hereby certify that I have electronically submitted for filing, a correct copy

of the foregoing in accordance with the electronic filing system for the

Seventh Court of Appeals on this the 22nd day of June, 2015.

                                       /s/ Johnathan Stone
                                       JOHNATHAN STONE
                                       Assistant Attorney General

                        CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 1,366 words, excluding any parts exempted

by Tex. R. App. P. 9.4(i)(1).

                                       /s/ Johnathan Stone
                                       JOHNATHAN STONE
                                       Assistant Attorney General

                       CERTIFICATE OF SERVICE

      I, Johnathan Stone, Assistant Attorney General of Texas, certify that a

true copy of the foregoing has been served by placing it in the United States




                                      13
Postal Service, postage prepaid, on the 23rd day of June, 2015, addressed

to:

      Evangelos Pagonis
      TDCJ No. 1626253
      Lynaugh Unit
      1098 S. Hwy 2037
      Fort Stockton, TX 79735
      Pro Se Appellant

                                    /s/ Johnathan Stone
                                    JOHNATHAN STONE
                                    Assistant Attorney General




                                   14
