                          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).




                                          19
          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).

                                            20
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




                                            21
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


                                                22
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.

                                          23
      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




                                       27
