Affirmed in part, Dismissed in part, and Majority and Concurring Opinions
filed March 19, 2019.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-17-00981-CV

    JERRY SANCHEZ, TIMOTHY WILIAMS, AND JOSE ESTRADA,
                        Appellants
                                         V.

                      JAMES DANIEL BOONE, Appellee

                   On Appeal from the 412th District Court
                          Brazoria County, Texas
                       Trial Court Cause No. 91722-1

                      CONCURRING OPINION
      I concur in the court’s judgment but write separately to expand on my
reasoning for doing so.

      Appellants challenge the denial of their plea to the jurisdiction on essentially
three grounds. Their first and second arguments apply to the “handmade items,”
which are the dog tag and the ring. First, the officers contend Boone has alleged
no facts and presented no evidence that the officers committed theft as to the
handmade items. Second, the officers say Boone’s theft claim should be dismissed
under the doctrine of “de minimus non curiat lex”—the law cares not for small
things.1      Third, the officers argue that they conclusively established their
entitlement to official immunity as to all items allegedly confiscated and not
returned.

       I agree with the majority that we lack interlocutory appellate jurisdiction
over the officers’ first two arguments under Texas Civil Practice and Remedies
Code section 51.014(a)(5).2 I begin with a preliminary observation regarding
whether our appellate jurisdiction is invoked under section 51.014(a)(5)
(applicable to assertions of immunity by officers or employees) as opposed to
section 51.014(a)(8) (applicable to orders granting or denying pleas to the
jurisdiction by governmental units). The officers’ notice of appeal cites section
51.014(a)(8) as the basis for appeal and states that “this is an appeal of a trial
court’s partial denial of a plea to the jurisdiction by a governmental unit.” Section
51.014(a)(8) is not a proper basis for interlocutory appellate jurisdiction in this
case. To the extent the officers were sued in their official capacities, such claims
are considered to be asserted against their governmental unit employer;3 however,
the trial court granted the officers’ plea as to any such claims and neither party
complains of that ruling. The officers’ only arguments on appeal pertain to the



       1
           See Smith v. Stevens, 822 S.W.2d 152, 152 (Tex. App.—Houston [1st Dist.] 1991, writ
denied).
       2
          Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). Because section 51.014 is a narrow
exception to the general rule that only final judgments and orders are appealable, we strictly
construe it. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).
       3
        See, e.g., Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—
Houston [1st Dist.] 1999, pet. dism’d w.o.j.).

                                               2
claims asserted against them in their individual capacities. Thus, I construe the
notice of appeal as one seeking review under section 51.014(a)(5) only.

       Under section 51.014(a)(5), a “person” may appeal from an interlocutory
order of a district court denying “a motion for summary judgment that is based on
an assertion of immunity by an individual who is an officer or employee of the
state or a political subdivision of the state.”             Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(5).4 “Immunity” as used in this section refers to “official immunity.”
See City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993). Official
immunity is a common law affirmative defense rendering individual officials
immune from both liability and suit. See Ballantyne v. Champion Builders, Inc.,
144 S.W.3d 417, 422 (Tex. 2004); DeWitt v. Harris County, 904 S.W.2d 650, 653
(Tex. 1995); Kassen v. Hatley, 887 S.W.2d 4, 8-9 (Tex. 1994). Because official
immunity is an affirmative defense, the party asserting it must plead and prove all
of its elements. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
Government employees are entitled to official immunity from suit arising from the
performance of their (1) discretionary duties in (2) good faith as long as they are
(3) acting within the scope of their authority. Id.

       Several courts of appeals, including ours, have held that section 51.014(a)(5)
does not confer interlocutory appellate jurisdiction over arguments that are not
based on “assertions of immunity.” See Baylor Coll. of Med. v. Hernandez, 208
S.W.3d 4, 11 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (court of
appeals lacked interlocutory jurisdiction under section 51.014(a)(5) because

       4
           Although section 51.014(a)(5) specifically references a “motion for summary
judgment,” the Supreme Court of Texas has held that an appeal may be taken from orders
denying “assertions of immunity” regardless of the procedural vehicle used. Austin State Hosp.
v. Graham, 347 S.W.3d 298, 301 (Tex. 2011). That the officers appeal from the denial of a plea
to the jurisdiction thus does not preclude our jurisdiction so long as, and to the extent that, the
plea was based on an assertion of immunity.

                                                3
employees’ motion not based on assertion of official immunity); Dallas County v.
Gonzales, 183 S.W.3d 94, 114 (Tex. App.—Dallas 2006, pet. denied) (holding no
appellate jurisdiction under section 51.014(a)(5) because appellant’s argument did
not assert his actions were discretionary, made in good faith, and within the scope
of his authority); Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 470-71 (Tex.
App.—Houston [1st Dist.] 2002, no pet.); see also Tumlinson v. Barnes, No. 03-
15-00642-CV, 2017 WL 1832488, at *2 (Tex. App.—Austin May 5, 2017, no pet.)
(mem. op.) (interlocutory appellate jurisdiction existed under section 51.014(a)(5)
only to the extent the order denied an assertion of immunity raised in plea to
jurisdiction). Thus, our jurisdiction over the order denying the officers’ plea is
limited only to the portions of the plea based on immunity.5

       5
          As noted by the majority, the Supreme Court of Texas recently considered the scope of
interlocutory appellate jurisdiction under section 51.014(a)(6), which permits interlocutory
appeal from “an . . . order . . . that . . . denies a motion for summary judgment that is based in
whole or in part upon a claim against or defense by” a member of the media or a person quoted,
arising under constitutional free speech and press guarantees or Texas libel statutes. See Dallas
Symphony Ass’n, Inc. v. Reyes, No. 17-0835, 2019 WL 1090771 (Tex. Mar. 8, 2019). The court
held that section 51.014(a)(6) allows a summary judgment movant to appeal an order denying its
motion as to all grounds raised in the motion so long as those grounds included the issues stated
in section 51.014(a)(6). Id. at *4-5. The court rejected the respondent’s argument that the scope
of interlocutory jurisdiction was limited to the portion of the order denying summary judgment
on claims or defenses arising under constitutional free speech and press guarantees or Texas libel
statutes. Id. The present appeal, however, is based on section 51.014(a)(5), not section
51.014(a)(6). The former’s language differs from the latter’s in that appeals under section
51.014(a)(5) involve an “interlocutory order . . . that denies a motion for summary judgment
based on an assertion of immunity . . . .” Tex. Civ. Prac. & Rem. Code § 51.014(a)(5) (emphasis
added). The cases cited above, and others, have interpreted section 51.014(a)(5) not to extend to
issues other than those specified, i.e., an officer’s assertion of immunity. In Dallas Symphony,
the court noted the difference in language between sections 51.014(a)(5) and 51.014(a)(6), but it
also expressly declined to opine whether courts’ limited interpretation of section 51.014(a)(5)
was incorrect. Dallas Symphony, 2019 WL 1090771, at *5. As neither Dallas Symphony nor
any other Texas Supreme Court decision has disapproved our holding in Baylor College of
Medicine v. Hernandez, we are bound to adhere to this court’s precedent. See, e.g., Lopez v.
State, 478 S.W.3d 936, 943 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); Univ. of Tex.
Health Sci. Ctr. v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th Dist.] 2011, no
pet.); Kiffe v. State, 361 S.W.3d 104, 116 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(Jennings, J., concurring).

                                                4
       In fundamental character, the officers’ first argument is not an assertion of
an official immunity affirmative defense; it is an attack on one or more required
elements of Boone’s case-in-chief.6 According to the officers, the handmade items
either did not exist or were not taken from Boone’s cell.                    They contend no
evidence exists that “those items were in Boone’s possession at the time of the cell
search.” As the officers state in their brief, because Boone lacks evidence of at
least one element of his theft claim the court need not reach the official immunity
issue at all, and the officers were not tasked with proving the affirmative defense.
Thus, addressing the officers’ first argument, they acknowledge, does not require
that we reach the official immunity issue. Accordingly, the officers’ first point is
not an “assertion of immunity,” and we lack interlocutory appellate jurisdiction
under section 51.014(a)(5) to address it. See Hernandez, 208 S.W.3d at 11.

       The officers’ second argument appears to be a merits-based affirmative
defense that the value of the allegedly stolen handmade items is simply too small
to justify legal relief. It too is not grounded in immunity. The officers cite no
authority holding that the de minimus non curiat lex doctrine constitutes an
assertion of immunity. Courts that have applied the doctrine, like Smith v. Stevens7
cited by the officers, did so in the context of chapter 13 or chapter 14 dismissals of



       6
          The very nature of an affirmative defense assumes the plaintiff’s allegations are true as
to a cause of action. See LaGloria Oil & Gas Co. v. Carboline Co., 84 S.W.3d 228, 232 n.3
(Tex. App.—Tyler 2001, pet. denied) (“By definition, an affirmative defense . . . assumes that
the allegations in the plaintiff’s petition are true.”); RRR Farms, Ltd. v. Am. Horse Prot. Ass’n,
957 S.W.2d 121, 129-30 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Metrocon Constr.
Co., Inc. v. Gregory Constr. Co., 663 S.W.2d 460, 463 (Tex. App.—Dallas 1983, writ ref’d
n.r.e.) (affirmative defense assumes the truth of the plaintiff’s allegations, but avoids liability
based on other facts the defendant must prove). The officers’ first argument does not assume
Boone’s theft allegations are true; it contends the allegations are false or unsupported by
evidence.
       7
           822 S.W.2d at 152.

                                                5
pauper suits or inmate litigation.8 The officials in Smith did not rely on the
doctrine to establish immunity nor did the court discuss the doctrine as preserving
official immunity. See Smith, 822 S.W.2d at 152.9 In sum, I agree that we lack
interlocutory appellate jurisdiction to address the officers’ first two arguments.10

       We do, however, possess jurisdiction over the portion of the officers’
appellate argument challenging the trial court’s denial of their plea to the
jurisdiction that requested judgment based on official immunity. See Tex. Civ.
Prac. & Rem. Code § 51.014(a)(5). Whether the officers established the good faith
element of the official immunity defense is the critical issue for our purposes. To
establish good faith, the officers were required to show that a reasonably prudent
officer, under the same or similar circumstances, could have believed that the
conduct was justified based on the information the officers possessed when the
conduct occurred. See Ballantyne, 144 S.W.3d at 426; Telthorster v. Tennell, 92
S.W.3d 457, 461 (Tex. 2002); City of Lancaster, 883 S.W.2d at 656-57.

       The Ninth Court of Appeals considered a theft claim comparable to Boone’s
in Turner v. Fox.          There, Christopher Turner, an inmate, sued Vera Fox, a
correctional officer, claiming that Fox’s confiscation of Turner’s boots constituted


       8
           See Tex. Civ. Prac. & Rem. Code §§ 13.001 et seq.; 14.001 et seq.
       9
          In Smith, an inmate sued a prison official in his individual capacity for $3.55 in
damages based on allegations that the official took the inmate’s coffee and cigarettes. See Smith,
822 S.W.2d at 152. The trial court dismissed the suit under chapter 13 and the court of appeals
affirmed, holding “any error is harmless because the amount of actual damages is insignificant.”
Id.
       10
          Nothing about our conclusion on appellate jurisdiction prevents the officers from
advancing their arguments in the trial court through available procedural mechanisms, such as
no-evidence or traditional motions for summary judgment or motions to dismiss under Texas
Civil Practice and Remedies Code chapters 13 or 14. See, e.g., Turner v. Fox, No. 09-12-00541-
CV, 2013 WL 5775771, at *1-2 (Tex. App.—Beaumont Oct. 24, 2013, pet. denied) (mem. op.)
(officer moved for summary judgment on grounds that inmate could not prove elements of theft
claim).

                                                 6
theft under Texas Civil Practice and Remedies Code section 134.003. Turner,
2013 WL 5775771, at *1. Like Boone, Turner pursued the applicable internal
grievance process, which was denied due to Turner’s “questionable ownership” of
the boots. Id. Fox filed a motion for summary judgment asserting two arguments:
(1) Turner had no evidence that Fox confiscated the boots unlawfully; and (2) Fox
was entitled to official immunity because she acted within the scope of her
authority, performed discretionary duties, and had a good faith belief that the
confiscated boots had questionable ownership. Id. The trial court granted Fox’s
motion and dismissed the claims. The court of appeals affirmed the judgment,
reasoning on the immunity issue that Fox proved she acted in good faith based on
the information she had at the time she confiscated the boots. Id. at *2-3. Fox
presented evidence that ownership of the boots was questionable because they
were not Turner’s size, and Turner presented no credible evidence of ownership.
Id.   During the grievance process, two other officers conducted independent
investigations and also concluded that Turner presented insufficient evidence of
ownership. Id. at *3. Thus, the court held that Turner showed that a reasonably
prudent officer could have believed that her conduct in confiscating the boots was
justified based on the information Fox possessed when her conduct occurred. See
id. Because Turner did not meet his burden to show that no reasonable officer
similarly situated and possessing the same information could have believed the
facts were such that they justified the conduct, summary judgment on official
immunity grounds was proper. See id.

       Boone’s Texas Theft Act liability claims against the officers in their
individual capacities potentially state a claim under Texas law.11 See Minix v.
Gonzales, 162 S.W.3d 635, 639 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
       11
          Boone’s allegations as to his dog tag, however, implicate only Sergeant Estrada and not
the other officers.

                                               7
“A person who commits theft is civilly liable under the Act ‘for the damages
resulting from the theft.’” Beaumont v. Basham, 205 S.W.3d 608, 618 (Tex.
App.—Waco 2006, pet. denied) (quoting Tex. Civ. Prac. & Rem. Code
§ 134.003(a)).      A person commits the offense of theft if “he unlawfully
appropriates property with intent to deprive the owner of property.” Tex. Penal
Code § 31.03(a).

       Official immunity being an affirmative defense, the officers were obligated
to establish all of its elements. Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d
117, 128 (Tex. 2015). I concur with the majority that the officers conclusively
established their entitlement to official immunity with respect to the typewriter,
and that the trial court’s order denying their plea as to the alleged theft of that item
was error. The record shows conclusively, including by Boone’s admission, that
he used the typewriter to conceal contraband, which was the reason the typewriter
was confiscated and not returned.              According to Boone’s allegations, he
intentionally used the typewriter to hide SIM cards and showed the officers where
they were hidden. When asked where the cell phones were located, Boone insisted
he did not know, but if he did know he could not say because it “would put [his]
life in danger.” Possession of contraband is a violation of Texas Department of
Criminal Justice rules.12 This record demonstrates conclusively that reasonably
prudent officers in the defendants’ position could have believed that their conduct
in confiscating and not returning the typewriter was justified based on the
information possessed when the conduct occurred.                  See Turner, 2013 WL
5775771, at *3; see also Kendall v. Poos, No. 05-99-01391-CV, 2001 WL 580136,
at *6 (Tex. App.—Dallas May 31, 2001, no pet.) (not designated for publication)
(officer established good faith as to conversion claim for impounded vehicle);
       12
           With respect to persons in the custody of a correctional facility, possession of SIM
cards is also a felony under Texas Penal Code section 38.11(a)(3).

                                              8
Dorrough v. Faircloth, 443 S.W.3d 278, 288-89 (Tex. App.—San Antonio 2014,
no pet.) (allegation of intentional torts against game warden after warden
questioned plaintiffs about interfering with others’ rights to fish; warden
established good faith in questioning the plaintiffs and held entitled to official
immunity); Gonzales v. Kelley, No. 01-10-00109-CV, 2010 WL 2650615, at *6-8
(Tex. App.—Houston [1st Dist.] July 1, 2010, no pet.) (mem. op.) (officers
established that repeated use of taser was in good faith in defeating assault claim);
Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin 2007, no pet.) (in
defamation case, court examined whether governor’s former chief-of-staff made
allegedly defamatory statements in good faith; court held former official was
entitled to immunity); Gidvani v. Aldrich, 99 S.W.3d 760, 764 (Tex. App.—
Houston [1st Dist.] 2003, no pet.) (district attorney proved good faith and entitled
to official immunity regarding decision to order autopsy). Boone has not presented
evidence that no reasonable and similarly situated official could have believed that
the conduct was justified.

      As to the handmade items—the dog tag and the ring—the record is not as
well developed as it is with regard to the typewriter. The plea to the jurisdiction
and attachments do not offer a justification for confiscating the handmade items
specifically nor do the officers assert a justification in their brief on appeal. In
contrast to the circumstances in Turner, the officers filed no affidavits or other
evidence explaining the reason why confiscating the handmade items was
reasonably justified based on the information the officers possessed. It is not clear
from our record whether Boone was entitled to possess the dog tag and the ring,
and the officers do not argue that those items are contraband or that Boone was not
otherwise entitled to possess them. The officers’ good faith argument on appeal
does not acknowledge those items were confiscated; they claim the handmade


                                         9
items either do not exist or they never took them. They characterize Boone’s
complaint as alleging that the officers “lost” his handmade items, and they argue
that misplacing an inmate’s property “does not per se demonstrate a lack of good
faith.”     The officers also contend they returned all of Boone’s property or
explained why they were justified in not returning any property retained. In this
case’s current posture, and on this record, I cannot say the trial court erred in
denying the official immunity argument asserted in the plea as to the dog tag and
the ring because the officers did not meet their burden to establish good faith as to
those items.

          The officers state that they acted in good faith in performing a search and
inventory of Boone’s cell and property, a proposition Boone apparently does not
dispute. But Boone is not complaining of his cell search; Boone alleges theft of his
handmade items under section 134.003. Assuming the officers were justified in
performing the search of Boone’s cell and completing an inventory, and because
they seek dismissal based on the official immunity defense, they nonetheless bore
the burden to prove that a reasonably prudent officer could have believed that
confiscating the property at issue was justified based on the information the
officers possessed when that conduct occurred. See Turner, 2013 WL 5775771, at
*3 (examining good faith in confiscating inmate property); Gonzales, 2010 WL
2650615, at *6-8 (examining good faith in use of taser); Kendall, 2001 WL
580136, at *6 (examining good faith in decision to impound vehicle). They met
this burden with respect to the typewriter but not the handmade items.




                                         /s/    Kevin Jewell
                                                Justice
Panel consists of Justices Wise, Jewell, and Bourliot (Bourliot, J., majority).
                                           10
