                             NUMBER 13-06-00472-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


KIRK WAYNE MCBRIDE SR.,                                                      Appellant,

                                            v.

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE - CORRECTIONAL INSTITUTIONS DIVISION,                                 Appellee.


                   On appeal from the 343rd District Court
                           of Bee County, Texas.


               MEMORANDUM OPINION ON REMAND

    Before Chief Justice Valdez and Justices Yañez and Benavides
      Memorandum Opinion on Remand by Chief Justice Valdez

       Appellant, Kirk Wayne McBride Sr., an inmate proceeding pro se, challenges a trial

court’s order granting a plea to the jurisdiction in favor of appellee, Texas Department of

Criminal Justice-Correctional Institutions Division (the “Department”). By one issue,

McBride asserts that the trial court erred in granting the Department’s plea to the
jurisdiction because the Department waived sovereign immunity by requesting attorney’s

fees and deprived him of his due process rights by failing to provide him with notice of a

grievance proceeding decision. We affirm.

                                      I. BACKGROUND

       While an inmate at a Department facility, McBride was charged with possession of

an alcoholic beverage, a facility infraction. The Department entered findings against him

in an administrative disciplinary proceeding.     McBride subsequently filed a Step 1

Grievance pursuant to the Department’s appeals process.          The Department denied

McBride’s Step 1 Grievance on September 29, 2004; however, McBride filed another Step

1 Grievance alleging that the Department failed to notify him of its September 29, 2004

decision. The Department responded by arguing that it had provided McBride with notice

of its September 29, 2004 decision.

       In any event, McBride next filed a Step 2 Grievance, arguing that: (1) he was denied

the right to challenge the September 29, 2004 decision; (2) he was denied the right to

exhaust his administrative remedies; and (3) the fifteen-day limitation period should begin

anew from the date he received notice of the September 29, 2004 decision. Noting that

McBride’s record revealed numerous grievances filed on a regular basis, the Department

summarily denied McBride’s Step 2 Grievance, closed the case, and took no further action.

       On January 10, 2005, McBride filed suit against the Department, complaining that

the Department violated his due process rights by not providing him with notice of the

September 29, 2004 decision on his Step 1 Grievance and by denying his Step 2

Grievance without adequate notice.      McBride sought a judgment declaring that the

Department failed to comply with its own grievance procedures and seeking injunctive relief
                                            2
ordering the Department to provide him with notice of the September 29, 2004 decision so

that he could proceed with his administrative remedies.

       The Department filed an answer generally denying McBride’s allegations, asserting

sovereign immunity, and requesting attorney’s fees. The Department also filed a plea to

the jurisdiction, arguing that McBride’s claims were barred by sovereign immunity. After

a hearing, the trial court granted the Department’s plea to the jurisdiction.

       On original submission, this Court concluded that the trial court erred in granting the

Department’s plea to the jurisdiction because the Department waived sovereign immunity

by requesting attorney’s fees. McBride v. Tex. Dep’t of Criminal Justice-Corr. Inst. Div., No.

13-06-00472-CV, 2008 Tex. App. LEXIS 5797, at *4 (Tex. App.–Corpus Christi July 31,

2008) (mem. op.), rev’d by Tex. Dep’t of Criminal Justice v. McBride, No. 08-0832, 2010

Tex. LEXIS 419 (Tex. June 11, 2010). Specifically, we noted that “the Department’s claim

for attorney’s fees is considered a claim for affirmative relief that waives sovereign

immunity.” McBride, 2008 Tex. App. LEXIS 5797, at *4. The Department filed a petition

for discretionary review with the Texas Supreme Court, which was granted. The supreme

court reversed this Court’s decision and remanded for further consideration of McBride’s

“constitutional claims for declaratory and injunctive relief.” Tex. Dep’t of Criminal Justice,

2010 Tex. LEXIS 419, at *2 n.1, *5. In particular, the supreme court stated that “the

Department’s request for attorney’s fees was purely defensive in nature, unconnected to

any claim for monetary relief. When that is the case, a request for attorney’s fees incurred

in defending a claim does not waive immunity under Reata . . . .” Id.; see Reata Constr.

Co. v. City of Dallas, 197 S.W.3d 371, 375-77 (Tex. 2006). We therefore analyze in this

opinion McBride’s remaining appellate issue pertaining to the trial court’s granting of the

                                              3
Department’s plea to the jurisdiction.

                                 II. STANDARD OF REVIEW

       A plaintiff who sues the State must establish the State’s consent to suit. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tex. Dep’t of Transp. v.

Jones, 8 S.W.3d 636, 638 (Tex. 1999). Otherwise, sovereign immunity from suit defeats

a trial court’s subject-matter jurisdiction. Jones, 8 S.W.3d at 638. The State may assert

sovereign immunity from suit in a plea to the jurisdiction. Id. A plea to the jurisdiction is

a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction, thus

defeating “a cause of action without regard to whether the claims asserted have merit.”

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).             Subject-matter

jurisdiction is essential to the authority of a court to decide a case. See Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Whether a trial court has subject-matter

jurisdiction is a legal question that we review de novo, construing the pleadings in the

plaintiff’s favor and looking to the pleader’s intent. Id.; see State v. Gonzalez, 82 S.W.3d

322, 327 (Tex. 2002).

                                         III. ANALYSIS

       On appeal, McBride’s sole remaining contention is that the trial court erred in

granting the Department’s plea to the jurisdiction because he did not assert that the

Department was “directly or vicariously liable . . . for personal injury or the lost [sic] of

property”; instead, he claimed a deprivation of due process rights involving the

Department’s alleged failure to provide him with a copy of the September 29, 2004

decision. The Department responds that it is entitled to sovereign immunity because

McBride has failed to demonstrate that the Department’s immunity has been waived.
                                           4
        In his suit for declaratory relief, McBride alleged that the Department’s purported

failure in providing him with a copy of the September 29, 2004 decision violated his due

process rights and his rights to access the courts under the 1st and 14th Amendments to

the United States Constitution and prevented him from complying with administrative

review procedures set forth in section 501.008 of the government code. See U.S. CONST .

I, XIV; see also TEX . GOV’T CODE ANN . § 501.008 (Vernon 2004) (delineating the inmate

grievance system).           On the other hand, in “Plaintiff’s Memorandum of Law and

Incorporated Brief in Support for Injunctive Relief,” McBride contended that the Department

violated title 42, section 1983 of the United States Code by failing to provide him with

“meaningful medical treatment and care” for his alleged Obstructive Sleep Apnea and a

“safe living environment,” arguments that have nothing to do with the original complaint

alleged in McBride’s original petition for declaratory relief.1                   See 42 U.S.C. § 1983

(providing that a party may file suit against “[e]very person” who deprives another of their

civil rights).2

        With regard to McBride’s suit for injunctive relief, we first note that the record does

not contain a copy of his original petition for injunctive relief. In the record before us, the

first time McBride requested injunctive relief for the above-mentioned grievances is when

he filed his “Memorandum of Law and Incorporated Brief in Support for [sic] Injunctive
        1
          McBride’s “safe living environm ent” contention pertains to threats that other prisoners have allegedly
directed towards McBride for “heavy snoring.” McBride argues that, because the Departm ent has failed to
properly treat his Obstructive Sleep Apnea, other prisoners have becom e agitated and aggressive towards
him and have threatened him with serious bodily injury.

        2
          The United States Suprem e Court has held that a State is not a “person” under title 42, section 1983
of the United States Code. See W ill v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, a state
governm ental unit is not subject to section 1983 claim s. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W .3d
575, 581 (Tex. 2001); see also W alton v. Tex. Dep’t of Criminal Justice, No. 13-07-00656-CV, 2008 Tex. App.
LEXIS 6365, at **5-6 (Tex. App.–Corpus Christi Aug. 21, 2008, no pet.) (m em . op.). Accordingly, the
Departm ent was not a proper party to McBride’s section 1983 claim s. See Petta, 44 S.W .3d at 581; see also
W alton, 2008 Tex. App. LEXIS 6365, at **5-6.
                                                       5
Relief” on March 13, 2007, approximately eight months after the trial court granted the

Department’s plea to the jurisdiction on July 28, 2006; therefore, McBride’s claims for

injunctive relief were not before the trial court at the time the plea to the jurisdiction—the

complained-of trial court order—was considered. Thus, it appears that the trial court did

not consider the arguments contained in McBride’s suit for injunctive relief at the time the

Department’s plea to the jurisdiction was granted.3

        Nevertheless, McBride had not directed us to jurisdictional facts indicating that the

Department waived sovereign immunity in his original petition for declaratory relief, his

later-filed claim for injunctive relief, or in any other pleading in the record before us. See

Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d at 638. In fact, in his response to the

Department’s plea to the jurisdiction, McBride stated, as his sole waiver argument, that the

Department waived sovereign immunity by asserting a claim for affirmative relief—the

Department’s request for attorney’s fees.                  The supreme court has held that the

Department’s request for attorney’s fees “was purely defensive in nature, unconnected to

any claim for monetary relief” and, therefore, did not waive immunity. Tex. Dep’t of

Criminal Justice, 2010 Tex. LEXIS 419, at *5. McBride has not asserted any other grounds

for the waiver of sovereign immunity. See Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d

at 638. Because the record does not demonstrate that the Department waived sovereign

immunity, the trial court lacked subject-matter jurisdiction over McBride’s claims. See

Jones, 8 S.W.3d at 638; see also Blue, 34 S.W.3d at 554; Mayhew, 964 S.W.2d at 928.

        3
           In researching McBride’s issue, it appears that this Court has already addressed and rejected
McBride’s allegations pertaining to his obstructive sleep apnea and serious bodily injury threats from other
prisoners. See McBride v. Tex. Dep’t of Criminal Justice-Corr. Inst. Div., Nos. 13-07-00130-CV & 13-07-
00305-CV, 2008 Tex. App. LEXIS 6839, at **5-12 (Tex. App.–Corpus Christi Aug. 28, 2008, no pet.) (m em .
op.). Further, the trial court, at the hearing on the Departm ent’s plea to the jurisdiction, noted that McBride
had filed num erous lawsuits and that he likely m isnum bered several of his filings.
                                                       6
As such, we cannot say that the trial court erred in granting the Department’s plea to the

jurisdiction. See Jones, 8 S.W.3d at 638; see also Blue, 34 S.W.3d at 554; Mayhew, 964

S.W.2d at 928. Accordingly, we overrule McBride’s sole issue.

                                    IV. CONCLUSION

      We affirm the judgment of the trial court.




                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice


Delivered and filed the
7th day of October, 2010.




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