                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00383-CV


JIM HERBERT HAMILTON JR.                                            APPELLANT

                                        V.

EMIL PECHACEK                                                        APPELLEE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Jim Herbert Hamilton Jr., an inmate proceeding pro se and in

forma pauperis, challenges the trial court’s order dismissing his lawsuit against

Appellee Emil Pechacek pursuant to Texas Civil Practice and Remedies Code

section 101.106(f).   In four issues, Hamilton argues that section 101.106(f)


      1
       See Tex. R. App. P. 47.4.
violates the open courts provision of the Texas constitution, that the trial court

erred by dismissing his suit, that the trial court erred by failing to consider and

rule on his motion for default judgment, and that the trial court erred by failing to

conduct a hearing on his motion for new trial. We will affirm in part and reverse

and remand in part.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      This is the second time that Hamilton has appealed the trial court’s

dismissal of his claims. See Hamilton v. Pechacek (Hamilton I), 319 S.W.3d 801

(Tex. App.—Fort Worth 2010, no pet.).        The trial court previously dismissed

Hamilton’s claims as frivolous under chapter 14 of the Texas Civil Practice and

Remedies Code. Id. at 805. In Hamilton I, Pechacek conceded on appeal that

one of Hamilton’s claims was not frivolous—that being Hamilton’s federal § 1983

excessive-force claim asserted against Pechacek individually.           Id. at 811.

Pechacek agreed in Hamilton I that this claim was “not subject to dismissal as

lacking basis in law” and was “not presently ripe for dismissal with prejudice

under § 14.003(a)(2).” Id. at 810. Consequently, in Hamilton I, we held that the

trial court abused its discretion by dismissing Hamilton’s § 1983 excessive-force

claim asserted against Pechacek individually. Id. at 812. In Hamilton I, for the

reasons set forth in that opinion, we also held that the trial court abused its

discretion by dismissing as frivolous Hamilton’s common-law assault and battery

claim and personal property claims and by dismissing Hamilton’s § 1983 access-



                                         2
to-courts claims with prejudice without giving Hamilton the opportunity to replead.

Id. at 816. We remanded these claims to the trial court. Id.

      Following our remand, Hamilton filed an amended pleading. The amended

pleading was titled, “Amended Original Petition To Recover Damages For

Assault And Battery, Excessive Force, Reckless Conduct, Negligent, Reckless,

And   Intentional   Destruction    Of   Property,   Deprivation    Of    Meaningful

Administrative   Remedy     And   Compensation,     Malicious,    Humiliation   And

Intentional Infliction Of Physical And Emotional Distress.” Hamilton’s amended

pleading does not plead a § 1983 access-to-courts claim.2              Hamilton did,

however, via this amended petition, attempt to add Brad Livingston, the

Executive Director of the Texas Department of Criminal Justice (the TDCJ), to

the lawsuit in Livingston’s individual capacity by having Assistant Attorney

General Harold J. Liller served. Livingston did not file an answer.3

      Pechacek filed a motion to dismiss Hamilton’s state law claims based on

Texas Civil Practice and Remedies Code section 101.106(f). Tex. Civ. Prac. &

Rem. Code Ann. § 101.106(f) (West 2011). In his motion, Pechacek argued that

all of Hamilton’s state law claims should be dismissed because Hamilton could


      2
       Hamilton’s pleading on remand states the same facts as his prior pleading
concerning the destruction of his legal papers; he does not assert an actual injury
to his position as a litigant in this or any other litigation. See Hamilton I, 319
S.W.3d at 815.
      3
       As discussed below, Hamilton ultimately moved for a default judgment
against Livingston, but the trial court denied his motion.

                                         3
have but failed to sue the TDCJ. The trial court granted Pechacek’s motion to

dismiss Hamilton’s state law claims pursuant to Texas Civil Practice and

Remedies Code section 101.106(f).

      The trial court’s order dismissing Hamilton’s claims recites that the motion

to dismiss Hamilton’s state law claims is granted, provides Hamilton with thirty

days to amend his petition, and states that his suit would be dismissed in its

entirety if Hamilton failed to amend within the thirty-day time period.         The

dismissal order also states that “[a]ll relief not expressly granted herein is hereby

denied.” Hamilton did not amend his petition. He did, however, file a motion for

new trial, which the trial court denied without conducting an evidentiary hearing.

Hamilton perfected this appeal.

                              III. DEFAULT JUDGMENT

      In his third point, Hamilton argues that the trial court should have granted

his motion for a default judgment against Livingston. The record contains a letter

dated April 9, 2012, from Hamilton to the Attorney General giving notice of

Hamilton’s intent to take a default judgment against Livingston. The Attorney

General responded by filing an amicus curiae advisory to the trial court informing

the trial court that Livingston had not been served with citation and that

Hamilton’s attempted service on Livingston through Assistant Attorney General

Liller was insufficient to effectuate service on Livingston.        The trial court,

apparently broadly construing Hamilton’s letter as a motion for default judgment,



                                         4
denied the motion on May 1, 2012. Hamilton thereafter filed a formal motion for

default judgment.

      Hamilton argues that the trial court failed to rule on his motion for default

judgment and instead dismissed his suit and that the amicus curiae advisory was

not an available route in which to test the validity of service of process. Hamilton

argues that he relied on Texas Civil Practice and Remedies Code section

104.005 in serving the Attorney General. See Tex. Civ. Prac. & Rem. Code Ann.

§ 104.005 (West 2011). But section 104.005 does not address whom the plaintiff

must serve but rather whom the government-employee defendant must serve if

the employee desires for the State to cover the cost of defending him.4

Hamilton’s state law tort claims must be brought under the Texas Tort Claims Act

(the TTCA).    The TTCA provision concerning service of citation is found in

section 101.102(c). It provides:



      4
       Section 104.005 provides as follows:

             Except as provided by Section 104.0035, the state is not liable
      for the defense of an action covered by this chapter or for damages,
      court costs, or attorney’s fees unless:

             (1) the attorney general has been served in the case and the
      state has been given an opportunity to defend the suit; or

             (2) the person against whom the action is brought delivers to
      the attorney general all process served on the person not later than
      the 10th day after the date of service.

Tex. Civ. Prac. & Rem. Code Ann. § 104.005.

                                         5
             In a suit against the state, citation must be served on the
      secretary of state. In other suits, citation must be served as in other
      civil cases unless no method of service is provided by law, in which
      case service may be on the administrative head of the governmental
      unit being sued. If the administrative head of the governmental unit
      is not available, the court in which the suit is pending may authorize
      service in any manner that affords the governmental unit a fair
      opportunity to answer and defend the suit.

Id. § 101.102(c) (West 2011) (emphasis added). In a case involving the TDCJ,

the method of service is provided by law; under Texas Government Code section

492.010(d), the executive director of the TDCJ is the only person authorized to

receive service of process on behalf of the TDCJ.          Tex. Gov’t Code Ann.

§ 492.010(d) (West 2012). The Texas legislature has thus provided the specific

means by which the TDCJ or any of its divisions can be made a party to a suit—

“only” by service upon the TDCJ’s executive director. See McBride v. Mail Sys.

Coordinator’s Panel, No. 13-05-00560-CV, 2008 WL 2151523, at *3 (Tex. App.—

Corpus Christi May 22, 2008, pet. denied) (mem. op.).

      Hamilton attempted to serve Livingston by serving Assistant Attorney

General Liller; Livingston was not served.     Because Hamilton failed to serve

Livingston, the executive director of the TDCJ, in accordance with government

code section 492.010(d), neither Livingston nor the governmental unit was ever

formally added to the suit.5 And because Livingston was never added to the suit,

      5
        We can find no statute or case, and Hamilton has cited none, that stands
for or supports the propositions that Hamilton argues—that the Attorney General
knew or should have known that Livingston and the TDCJ would be joined and
that it was incumbent upon the Attorney General to notify Livingston and the
TDCJ that they had been added to the suit.

                                        6
a default judgment could not be taken against him. See Tex. R. Civ. P. 124

(stating that judgment cannot be rendered against any defendant unless he was

served).   To the extent that Hamilton complains that the trial court broadly

construed Hamilton’s letter to the Attorney General as a motion for default

judgment and ruled on it before Hamilton filed his formal motion for default

judgment, we cannot say that this was error; because Livingston was not served,

the trial court could not have ruled differently on the formal motion than it did on

the letter motion. We hold that the trial court did not abuse its discretion by

construing Hamilton’s letter as a motion for default judgment or by denying the

motion. See generally Black v. Jackson, 82 S.W.3d 44, 51 n.7 (Tex. App.—Tyler

2002, no pet.) (stating that pro se pleadings are reviewed with patience and

liberality); In re C.M.W., No. 02-12-00286-CV, 2012 WL 4121316, at *1 (Tex.

App.—Fort Worth Sept. 20, 2012, no pet.) (mem. op.) (liberally construing letter

as a motion to dismiss).

      Finally, we note that courts may entertain suggestions from an amicus

curiae, who, as a “friend of the court,” makes suggestions to the court about

questions apparent from the record in the case. See Kelley v. Scott, No. 14-01-

00696-CV, 2003 WL 21229275, at *1 (Tex. App.—Houston [14th Dist.] May 29,

2003, no pet.) (mem. op.) (citing State v. Jefferson Iron Co., 60 Tex. 312, 314–15

(1883); Moseby v. Burrow, 52 Tex. 396, 403 (1880); Jackson v. Birk, 84 S.W.2d

332, 332 (Tex. Civ. App.—Fort Worth 1935, no writ)). An amicus curiae is not a

party to the suit and may make only suggestions to the court; the court can take

                                         7
only the actions that it could have taken even in the absence of a suggestion by

an amicus curiae. See id.

      Here, the Attorney General’s amicus curiae advisory questioned the

sufficiency of service of process on the TDCJ and pointed out why a default

judgment against Livingston would not be proper. See Flinn v. Krotz, 293 S.W.

625, 626–27 (Tex. Civ. App.—San Antonio 1927, no writ) (explaining that amicus

curiae may question sufficiency of process and point out facts depriving court of

jurisdiction without constituting an appearance for a nonresident defendant).

The trial court did not grant any relief that it could not have granted in the

absence of the amicus curiae advisory. To the extent that Hamilton complains of

the trial court’s consideration of the amicus curiae suggestion, we overrule that

complaint. See Kelley, 2003 WL 21229275, at *1.

      We overrule Hamilton’s third point.

  IV. DISMISSAL WAS PROPER AS TO STATE LAW CLAIMS BUT NOT AS TO § 1983
                     FEDERAL EXCESSIVE-FORCE CLAIM

      In his second point, Hamilton argues that the trial court erred by dismissing

his suit under section 101.106(f) because he sued both Pechacek and the

governmental unit.

      Section 101.106(f) of the civil practice and remedies code provides:

      If a suit is filed against an employee of a governmental unit based on
      conduct within the general scope of that employee’s employment
      and if it could have been brought under this chapter against the
      governmental unit, the suit is considered to be against the employee
      in the employee’s official capacity only. On the employee’s motion,
      the suit against the employee shall be dismissed unless the plaintiff

                                        8
      files amended pleadings dismissing the employee and naming the
      governmental unit as defendant on or before the 30th day after the
      date the motion is filed.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Thus, a governmental employee

defendant is entitled to dismissal under section 101.106(f) upon 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. Id.; see also Franka v. Velasquez, 332

S.W.3d 367, 369 (Tex. 2011); Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).          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 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. 2013). Additionally, “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 by

completing the task. Id. The statute strongly favors dismissal of government

employees. Anderson, 365 S.W.3d at 124.

      Concerning the first element of section 101.106(f), Pechacek is a TDCJ

employee, thus establishing that he is an employee of a governmental unit. The

record also establishes that Pechacek was acting within the scope of his

                                         9
employment in this case when he attempted to maintain institutional security by

giving Hamilton an order to remove his belongings from the trash can, and it is

clear from the record that Hamilton is suing Pechacek for the actions he took in

ultimately removing Hamilton’s jacket from the top of the trash can causing a cup

of hot coffee to spill on Hamilton’s chest and on Hamilton’s papers. To the extent

Hamilton attempts to argue that Pechacek acted outside his legal authority, ultra

vires, such exception does not, in any event, permit recovery of retrospective

damages sought by Hamilton.       Lopez v. Serna, 414 S.W.3d 890, 895 (Tex.

App.—San Antonio 2013, no pet.) (citing City of El Paso v. Heinrich, 284 S.W.3d

366, 372 (Tex. 2009)). In short, Pechacek was an employee of a governmental

unit acting within the scope of his employment at the time of the incident giving

rise to Hamilton’s state law tort claims. See id. (determining that officers were

acting within the scope of their employment while confiscating plaintiff’s

property).

      Concerning the second element, the supreme court held in Franka that if a

state employee is alleged to have committed negligence or other “wrongful

conduct” in the general scope of employment, then the suit is subject to section

101.106(f) because it could have been brought against the state agency. 332

S.W.3d at 381. This construction of section 101.106(f) forecloses suit against a

government employee in his individual capacity if he was acting within the scope

of his employment. Id. Although Hamilton asserted his state tort claims against

Pechacek in his individual capacity, Pechacek’s allegedly tortious actions were

                                       10
made in the course and scope of his employment, and thus Hamilton’s claims

could have been, but were not, brought against the TDCJ. See id. at 369, 381

(stating that section 101.106(f)’s two elements are met in almost every

negligence suit against a government employee and that all common-law tort

theories alleged against a governmental unit are assumed to be under the

TTCA). We hold that the trial court did not abuse its discretion by dismissing

Hamilton’s state law tort claims pursuant to section 101.106(f). See Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(f); Lopez, 414 S.W.3d at 895 (holding that

inmate’s claims against officers would have been subject to section 101.106(f));

Mason v. Wood, No. 09-12-00246-CV, 2013 WL 1088735, at *3 (Tex. App.—

Beaumont Mar. 14, 2013, no pet.) (mem. op.) (holding that inmate’s tort claims

“could have been brought under this chapter against the governmental unit”).

We overrule Hamilton’s second point as it relates to the dismissal of his state law

claims.6



      6
         Hamilton argues that Pechacek’s motion to dismiss does not cover his
claims for reckless conduct, malicious humiliation, and intentional infliction of
physical distress. To the extent that “reckless” and “humiliation” are an element
and an example, respectively, of other torts that were pleaded, the trial court did
not abuse its discretion by dismissing them under section 101.106(f). And to the
extent that these “claims” are not recognized as independent causes of action,
the trial court did not abuse its discretion by dismissing them in the remainder of
its final judgment. See, e.g., Westbrook v. Treon, No. 02-03-00317-CV, 2004 WL
2914288, at *1 (Tex. App.—Fort Worth Dec. 16, 2004, no pet.) (mem. op.)
(holding that trial court did not abuse its discretion by dismissing appellant’s
lawsuit because Texas does not recognize a cause of action for prison officials’
negligent or even grossly negligent failure to enforce rules applicable to inmates).

                                        11
      Although Pechacek moved for dismissal of only Hamilton’s state law

claims pursuant to TTCA section 101.106(f), the trial court’s order dismisses all

of Hamilton’s claims. In Hamilton I, we remanded Hamilton’s federal § 1983

excessive-force claim against Pechacek individually.       Pechacek’s motion for

dismissal of Hamilton’s state law claims pursuant to TTCA section 101.106(f) did

not seek dismissal of this claim, and indeed, the motion provided no legal basis

for the dismissal of this claim.7 Because section 101.106(f) does not apply to

claims under § 1983 and because Pechacek did not move for dismissal of the

federal § 1983 excessive-force claim, the trial court erred by dismissing it. See

Swain, 2009 WL 3246750, at *5 (holding that trial court erred by dismissing

plaintiff’s § 1983 claims under section 101.106(e)); see also Franka, 332 S.W.3d

at 379 (stating that section 101.106’s four references to “under this chapter”

suggests that the meaning throughout is the same); Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 204 (Tex. 2001) (“Granting more relief than the movant is entitled

to makes the order reversible, but not interlocutory.”).




      7
       As we discussed above, section 101.106(f) requires dismissal of the
employee on the employee’s motion if suit could have been brought against the
governmental unit “under this chapter”—the TTCA. Section 101.106(f)’s “under
this chapter” language does not include claims based on alternate, independent
statutes that waive sovereign or governmental immunity. See Swain v. Hutson,
No. 02-09-00038-CV, 2009 WL 3246750, at *5 (Tex. App.—Fort Worth Oct. 8,
2009, pet. denied) (mem. op.). Section 101.106(f) thus does not apply to federal
§ 1983 claims. See id. (holding that section 101.106(e)’s “under this chapter”
language does not apply to federal § 1983 claims).

                                         12
      We therefore sustain Hamilton’s second point as it relates to the dismissal

of his § 1983 excessive-force claim against Pechacek in his individual capacity.8

    V. SECTION 101.106(F) DOES NOT VIOLATE THE OPEN COURT’S PROVISION

      In his fourth point, Hamilton argues that the application of section

101.106(f) to bar his state law claims against Pechacek violates the open courts

provision of the Texas constitution. The open courts provision states that “[a]ll

courts shall be open, and every person for an injury done him, in his lands,

goods, person[,] or reputation, shall have remedy by due course of law.” Tex.

Const. art. I, § 13. While the Franka court was not presented with an open courts

challenge to section 101.106(f), it did opine on the outcome of such a challenge

as follows:

      We recognize that the Open Courts provision of the Texas
      Constitution “prohibits the Legislature from unreasonably abrogating
      well-established common-law claims,” but restrictions on
      government employee liability have always been part of the tradeoff
      for the Act’s waiver of immunity, expanding the government’s own
      liability for its employees’ conduct, and thus “a reasonable exercise
      of the police power in the interest of the general welfare.”

332 S.W.3d at 385 (internal citations omitted). Thus, the supreme court has

indicated that an open courts challenge to section 101.106(f) would fail because

the restriction is reasonable when balanced against the statute’s purpose. Id.;



      8
       We express no opinion on whether Hamilton’s § 1983 excessive-force
claim has legal or factual merit. We hold only that section 101.106(f), relied on
by Pechacek as the sole basis for the dismissal of this suit, cannot support
dismissal of this statutory federal law claim.

                                       13
see also Williams v. Nealon, 394 S.W.3d 9, 12 (Tex. App.—Houston [1st Dist.]

2012, pet. denied) (same). As explained by the Williams court,

      In exchange for the Tort Claims Act’s waiver of sovereign immunity
      in certain situations, the statute limits a litigant’s cause of action
      against employees of the state acting in the course and scope of
      their employment. The restriction serves to “narrow the issues,
      reduce delay, and avoid duplicative litigation.” Thus, we hold that
      such a restriction is “a reasonable exercise of the police power in the
      interest of the general welfare.”

Id. at 13–14 (internal citations omitted). We cannot hold that section 101.106(f)

violates the open courts provision of the Texas constitution. See id.; Kamel v.

Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676, 688 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied); Hintz v. Lally, 305 S.W.3d 761, 772–73

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) (a pre-Franka case rejecting

an open courts challenge to section 101.106(f)); see also Franka, 332 S.W.3d at

385. We overrule Hamilton’s fourth point.

VI. NO HEARING REQUIRED ON MOTION FOR NEW TRIAL WHEN JUROR MISCONDUCT
                            IS NOT ALLEGED

      In his first point, Hamilton argues that the trial court erred by failing to

conduct an evidentiary hearing on his motion for new trial because he raised

allegations “about the validity of the judgment obtained by fraudulent pleadings.”

Whether to hold an evidentiary hearing on a motion for new trial in a civil matter

is within the trial court’s discretion unless the ground for the motion is jury

misconduct.   See Hamilton I, 319 S.W.3d at 807; Hamilton v. Williams, 298

S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied); Parham v. Wilbon,


                                        14
746 S.W.2d 347, 351 (Tex. App.—Fort Worth 1988, no writ); see also Tex. R.

Civ. P. 327 (providing that, when the ground of a motion for new trial, supported

by affidavit, is misconduct of the jury, “the court shall hear evidence thereof from

the jury or others in open court”). Hamilton’s motion for new trial contains no

allegations of jury misconduct; no jury trial was held. Nor does Hamilton’s motion

present any question of fact upon which evidence must be heard or allege facts

that, if true, would entitle Hamilton to a new trial. See, e.g., Landis v. Landis, 307

S.W.3d 393, 394 (Tex. App.—San Antonio Dec. 2, 2009, no pet.) (“A trial court is

only required to conduct a hearing on a motion for new trial when a motion

presents a question of fact upon which evidence must be heard.”). Accordingly,

the trial court did not abuse its discretion by failing to conduct an evidentiary

hearing on Hamilton’s motion for new trial. We overrule Hamilton’s first point.

                                  VII. CONCLUSION

      Having sustained part of Hamilton’s second point, we reverse the trial

court’s judgment dismissing Hamilton’s § 1983 excessive-force claim against

Pechacek in his individual capacity,9 and we remand that claim to the trial court

for further proceedings consistent with this opinion.         Having overruled the

remainder of Hamilton’s points, we affirm the trial court’s judgment dismissing

Hamilton’s state law claims against Pechacek.


      9
        Because Hamilton had the opportunity to amend his pleadings to state a
§ 1983 access-to-courts claim but did not do so, this claim was not stated in the
trial court on remand, and we do not address it in this opinion.

                                         15
                                         SUE WALKER
                                         JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DELIVERED: March 20, 2014




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