                              Fourth Court of Appeals
                                     San Antonio, Texas
                                              OPINION
                                        No. 04-12-00839-CV

                                     Gonzalo Artemio LOPEZ,
                                            Appellant

                                                  v.

                         Lydia SERNA, et al., in their Individual Capacities,
                                             Appellee

                     From the 81st Judicial District Court, Karnes County, Texas
                                Trial Court No. 12-03-00045-CVK
                               Honorable Ron Carr, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 25, 2013

AFFIRMED

           Appellant Gonzalo Artemio Lopez, an inmate, filed suit against two Texas Department of

Criminal Justice (“TDCJ”) correctional officers, Lydia Serna and Gregory Galan. After a hearing,

the trial court dismissed Lopez’s claims under Chapter 14 of the Texas Civil Practice and Remedies

Code (“CPRC”). On appeal, Lopez contends the trial court erred in dismissing his claims because:

(1) his theft claims, arising out of property confiscation, are not subject to section 101.106(f) of

the Texas Tort Claims Act as interpreted by the Texas Supreme Court in Franka v. Velasquez; and
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(2) his claims are not frivolous even if they may ultimately be barred by sovereign immunity. We

affirm the trial court’s judgment.

                                               BACKGROUND

          On December 14, 2011, Officers Serna and Galan conducted a search of Lopez’s cell and

confiscated chess books, a yoga magazine, and other reading materials. Officer Serna filled out

paperwork documenting the property confiscation and left it for Lopez in his cell. Officer Serna

stated the reason for the property confiscation was because she had reason to question Lopez’s

ownership of the confiscated materials. Lopez filed a grievance through TDCJ’s administrative

system. Lopez then filed suit against Officers Serna and Galan, alleging they were liable for theft

under the Texas Theft Liability Act. Lopez filed an affidavit of inability to pay costs, and

submitted additional documents required under Chapter 14 of the Civil Practice and Remedies

Code. 1

          The trial court sent notice of the suit to the Attorney General requesting amicus curiae

briefing on whether Lopez complied with Chapter 14’s requirements. The notice requested the

Attorney General seek authority to represent Officers Serna and Galan, and answer on their behalf.

The Attorney General submitted its Chapter 14 amicus brief to the trial court, arguing Lopez’s

claims should be dismissed because they would ultimately be barred by the officers’ motion to

dismiss under section 101.106(f) of the Texas Civil Practice & Remedies Code, as interpreted in

Franka v. Velasquez, and TDCJ’s subsequent assertion of sovereign immunity.

          Following a hearing, the trial court signed a final judgment dismissing Lopez’s claims

under Chapter 14, specifically section 14.003(b)(1), which provides that an inmate’s suit may be



1
 In his First Amended Petition, Lopez added two defendants, G. Calvin W. Davis and Cheryl Lawson, following the
hearing on his Chapter 14 motion. The same arguments made on behalf of Officers Serna and Galan apply to the two
other defendants, who were admittedly working in the course of their employment.

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dismissed if “the claim’s realistic chance of ultimate success is slight.” Lopez thereafter filed a

motion for new trial, which the trial court denied. He then perfected this appeal.

                                             ANALYSIS

       On appeal, Lopez contends the trial court erred in dismissing his claims because: (1) his

theft claims, arising out of property confiscation, are not subject to section 101.106(f) of the Tort

Claims Act as interpreted in Franka v. Velasquez; and (2) his claims are not frivolous even if they

may ultimately be barred by sovereign immunity.

                                        Standard of Review

       This court reviews a trial court’s dismissal of an inmate’s claim under Chapter 14 for an

abuse of discretion. Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San Antonio 2009, pet.

denied); Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet. denied). A

trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it

acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985). When, as here, the trial court dismisses a claim without

conducting a fact hearing, the issue on appeal is whether the claim had no arguable basis in law.

Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.). To determine

whether a trial court has properly determined there is no arguable basis in law for a claim, “we

examine the types of relief and causes of action appellant pleaded in his petition to determine

whether, as a matter of law, the petition stated a cause of action that would authorize relief.” Id.

When, as here, a trial court does not issue findings of fact and conclusions of law, the appellate

court implies all findings necessary to support the judgment. Griffith v. Griffith, 341 S.W.3d 43,

49 (Tex. App.—San Antonio 2011, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002)).



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       Were Lopez’s claims subject to section 101.106(f) of the Texas Tort Claims Act?

       Lopez first contends the trial court erred in dismissing his claims because his theft claims,

arising out of property confiscation, are not subject to section 101.106(f) of the Texas Tort Claims

Act, as interpreted by the supreme court in Franka v. Velasquez. See 332 S.W.3d 367, 369 (Tex.

2011). Specifically, Lopez asserts his complaint is not barred by Franka because Officers Serna

and Galan stole his property and may be sued in their individual capacities. Section 101.106(f)

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 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. 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011).

       In Franka, the supreme court held that under section 101.106 of the Texas Tort Claims

Act, “a suit against a government employee acting within the general scope of his employment

must be dismissed if it could have been brought under this chapter [that is, under the Act] against

the governmental unit.” 332 S.W.3d at 369. The court in Franka clarified section 101.106(f)’s

three-pronged test for determining whether a suit against a government employee is considered a

suit against the employee in her official capacity only. Id.; see Anderson v. Bessman, 365 S.W.3d

119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The first prong is whether the defendant

is an employee of a governmental unit. Anderson, 365 S.W.3d at 124. The second prong is

whether a defendant is acting within the general scope of her employment. Id. And the third is




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whether suit could have been brought under the Tort Claims Act against the agency. Id. The

statute strongly favors dismissal of governmental employees. Id.

       In Mason v. Wood, No. 09-12-00245-CV, 2013 WL 1088735 (Tex. App.—Beaumont

March 14, 2013, no pet.), the Ninth Court of Appeals held that when an inmate alleges a

correctional officer committed theft under the Theft Liability Act while confiscating inmate

property under TDCJ’s inmate-property policy, as in this case, the claim is subject to section

101.106(f) under Franka. Id. at *7. That is, the claim could have been brought “under [the]

chapter” against the governmental unit. Id. at *7. The inmate in Mason sued correctional officers

for theft after they confiscated his property because he possessed contraband and had excessive

amounts of other property. Id. at *1, 7. The officers filled out a TDCJ form for property

confiscation and left it with the inmate. Id. at *1. The court of appeals affirmed the dismissal of

the inmate’s claims based on the inmate’s admission that the officers were acting in the scope of

their employment. Id. at *7.

       Similarly, in this case, Lopez admits in his petition that Officers Serna and Galan are TDCJ

employees. Therefore, the trial court properly determined Lopez’s petition met Franca’s first

prong. See Anderson, 365 S.W.3d at 124. The trial court also determined Officers Serna and

Galan were acting within the general scope of their employment. The Tort Claims Act 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 a competent authority.”         Id. (quoting TEX. CIV. PRAC. & REM. CODE

§ 101.001(5)). Lopez argues the officers acted outside the scope of their employment because they

had no authority to commit theft. However, “[a]n official acts within the scope of her authority if

she is discharging the duties generally assigned to her.” 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
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to which the official has been assigned, even if the official errs in completing the task. See id.

Here, Lopez, admits the officers were conducting their ordinary duties in confiscating his property.

For example, Lopez admits Officer Serna was in charge of offender property confiscation in his

building. Officer Serna also left a form with Lopez citing the reasons for confiscating his property.

Therefore, it is clear from the record the officers were acting within the scope of their employment

in this case while confiscating Lopez’s property.

       Finally, consistent with the court’s holding in Mason, we hold the trial court in this case

properly determined Lopez could have brought his claims against TDCJ under the Tort Claims

Act. See Mason, 2013 WL 1088735, at *7 (holding claim is subject to section 101.106(f) under

Franka because it could have been brought “under chapter” against governmental unit); see also

Anderson, 365 S.W.3d at 124. Lopez argues Franka does not apply because theft is an intentional

tort. However, in Franka, the supreme court held 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.

Accordingly, we reject Lopez’s argument that the principles announced in Franka apply only to

negligence claims and not intentional claims. See Mason, 2013 WL 1088735, at *9–10.

       Lopez appears to argue an ultra vires exception (regarding the filing of suits against state

agencies) applies when he asserts the officers acted outside their legal authority. See Franka, 332

S.W.3d at 382 & n. 69. However, the ultra vires exception does not apply in this case because this

suit is for damages. See Mason, 2013 WL 1088735, at *10 (citing City of El Paso v. Henrich, 284

S.W.3d 366, 372 (Tex. 2009)). Furthermore, the officers were acting within their legal authority

to confiscate property determined to be in violation of TDCJ policy.

       Finally, Lopez’s reliance on Salazar v. Collins and Presiado v. Sheffield is misplaced

because both cases were decided prior to Franka and assume the inmates could proceed against
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the correctional officers in both their individual and official capacities. See Salazar v. Collins, 255

S.W.3d 191, 203–05 (Tex. App.—Waco 2008, no pet.); Presiado v. Sheffield, 230 S.W.3d 272,

275 (Tex. App.—Beaumont 2007, no pet.). Franka held that claims brought against a public

official acting within the general scope of her employment is considered to be against the officer

in her official capacity only. Franka, 332 S.W.3d at 381 (quoting TEX. CIV. PRAC. & REM. CODE

ANN. § 101.106(f)). Therefore, we hold the trial court correctly determined that Lopez’s claims

against Officers Serna and Galan would have been subject to § 101.106(f). Officers Serna and

Galan, had they been served, could have moved under § 101.106(f) to dismiss the suit against them

and to have Lopez name TDCJ as the sole defendant.

 Were Lopez’s claims properly dismissed under Chapter 14 when it appears from the face of
              the petition they would likely be barred by sovereign immunity?

       A trial court may rely on Chapter 14, specifically section 14.003(b)(1), to dismiss an

inmate’s claim if the petition alleges facts showing that sovereign immunity would, in all

likelihood, bar the inmate’s claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003. Section

101.106(f) outlines a procedure by which a state employee may move to be dismissed from a suit

arising from her conduct in the general scope of her employment. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(f) (“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.”) After

the employee files a section 101.106 motion to dismiss, the plaintiff must amend the petition within

thirty days and name the state agency as the sole defendant. Id. Then, the plaintiff must serve the

state agency, and the state agency may file a plea to the jurisdiction on the pleadings if there is no

waiver of sovereign immunity for the claim.




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       Lopez argues the trial court erred in dismissing his claims under Chapter 14 as frivolous

even if it is clear from the face of his petition the claims may ultimately be barred by sovereign

immunity. We disagree.

       The Legislature enacted Chapter 14 to specifically govern in forma pauperis inmate

proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001. Its primary purpose was to

provide trial courts with a mechanism to reduce the toll of frivolous inmate litigation on judicial

and state resources. Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.]

2001, no pet.). One of the provisions enabling trial courts to actively guard judicial resources

against frivolous inmate lawsuits is the pre-service dismissal provision. See TEX. CIV. PRAC. &

REM. CODE ANN. § 14.003(a). This provision gives trial courts the authority—prior to service of

the complaint upon the defendant—to dismiss the case sua sponte if it appears the inmate’s claim

is frivolous or malicious. Gross v. Carroll, 339 S.W.3d 718, 722 (Tex. App.—Houston [1st Dist.]

2011, no pet.). This provision is modeled after a provision in the federal Prison Litigation Reform

Act (the “PLRA,” which Congress enacted to reduce frivolous inmate litigation in federal court),

granting district courts similar authority and requiring they screen inmate complaints prior to

service. See Torns v. Miss. Dep’t of Corr., 301 Fed. Appx. 386, 388–89 (5th Cir. 2008).

       Similarly, Section 14.003(b) provides that a trial court may dismiss an inmate’s suit as

frivolous and malicious, and it outlines four factors to consider, including whether:

       (1) the claim’s realistic chance of ultimate success is slight;
       (2) the claim has no arguable basis in law or in fact;
       (3) it is clear that the party cannot prove facts in support of the claim; or
       (4) the claim is substantially similar to a previous claim filed by the inmate because
       the claim arises from the same operative facts.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b).

       Because we hold Lopez’s claims against Officers Serna and Galan would have been subject

to section 101.106(f), and Lopez would therefore have to name TDCJ as the sole defendant, we
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hold the trial court correctly determined sovereign immunity would have barred Lopez’s suit

against TDCJ. There is no waiver of immunity under the Texas Theft Liability Act, and the Texas

Tort Claims Act expressly does not waive immunity for intentional torts. Solis v. City of Laredo,

353 S.W.3d 528, 532 n.2 (Tex. App.—San Antonio 2011, no pet.). Because Lopez’s petition

alleges facts showing that sovereign immunity would, in all likelihood, bar Lopez’s claims, we

hold the trial court correctly determined Lopez’s claims had only a slight chance of ultimate

success under section 14.003(b)(1).

       We recognize section 101.106(f) is not automatically implicated; that is, a defendant must

file a motion to dismiss under that section, and the defendants in this case did not file a motion to

dismiss. However, we hold that under section 14.003(b), a trial court has the power to sua sponte

dismiss an inmate suit prior to a formal section 101.106(f) motion. That is, trial courts may dismiss

an inmate’s suit under section 14.003(b)(1) if it appears from the face of the petition the claim

would have no more than a slight chance of ultimate success because it would ultimately be barred

by an affirmative defense such as sovereign immunity. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.003(b)(1). This rule comports with the Legislature’s purpose in enacting Chapter 14, which

was to simplify inmate proceedings and avoid unnecessary procedures in cases where inmate

filings would ultimately lack any chance of success. See Sanders, 36 S.W.3d at 226. Accordingly,

we hold the trial court did not err in dismissing Lopez’s claims as frivolous under section 14.003.

                                           CONCLUSION

       Based on the foregoing, we overrule Lopez’s issues and affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice




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