                                    IN THE
                            TENTH COURT OF APPEALS

                                    No. 10-11-00366-CV

MARK WALTERS,
                                                                   Appellant
    v.

TDCJ,
                                                                   Appellee


                              From the 278th District Court
                                 Walker County, Texas
                                 Trial Court No. 25,641


                             MEMORANDUM OPINION


         Mark Richard Walters, a prison inmate, filed suit against Kelli Stallings, Teena

Widner, James Vanette, Toby Dyer, and the Texas Department of Criminal Justice (the

TDCJ defendants).1 On the TDCJ defendants’ plea to the jurisdiction and motion to

dismiss, the trial court dismissed Walters’ suit with prejudice. We affirm.

         By his first, third, and fifth issues, Walters complains that the trial court erred in

granting the TDCJ defendants’ plea to the jurisdiction because Walters’ suit, he alleges,


1 All the four named “individual defendants” were prison employees at the time of the events forming
the basis of the suit.
was actually a § 1983 claim and not subject to a plea to the jurisdiction. Walters relies

on the Supreme Court case of Howlett v. Rose which held that governmental defendants

that are not arms of the State, such as municipalities, a defendant which is not involved

in Walters’ case, are liable for their constitutional violations. Howlett v. Rose, 496 U.S.

356, 377, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990). Section 1983 of the United States Code

provides as follows:

       Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia,
       subjects, or causes to be subjected, any 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, suit in equity, or other
       proper proceeding for redress. . . . "

42 U.S.C. § 1983. In reviewing a § 1983 claim, a court must first determine whether the

plaintiff has been deprived of such a right, privilege, or immunity and if so, whether the

defendant is responsible for that violation. Thomas v. Collins, 960 S.W.2d 106, 109 (Tex.

App.—Houston [1st Dist.] 1997, pet. denied); Emerson v. Borland, 927 S.W.2d 709, 717

(Tex. App.—Austin 1996, writ denied). See Collins v. City of Harker Heights, 503 U.S. 115,

120, 112 S. Ct. 1061, 1066, 117 L. Ed. 2d 261 (1992).

       The TDCJ defendants argue that there was no indication in Walters’ petition or

any other pleading that the trial court should have inferred Walters was raising a § 1983

claim. We agree with the TDCJ defendants.




Walters v. TDCJ                                                                         Page 2
       Texas follows a "fair notice" standard for pleading, which looks to whether the

opposing party can ascertain from the pleading the nature and basic issues of the

controversy and what evidence will be relevant. TEX. R. CIV. P. 47(a); Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). "A petition is sufficient if it

gives fair and adequate notice of the facts upon which the pleader bases his claim. The

purpose of this rule is to give the opposing party information sufficient to enable him to

prepare a defense." Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982).

       Walters alleged in his petition that he was seeking declaratory relief pursuant to

Section 37.003 of the Civil Practice and Remedies Code, the Uniform Declaratory

Judgments Act, to “redress the deprivation of State law.” In the body of his petition, he

alleged an action against Stallings for a violation of section 39.04 of the Texas Penal

Code, see TEX. PENAL CODE ANN. § 39.04(a)(1) & (2) (West 2011);2 an action for

negligence against Widner, Vanette, and Dyer (the supervisory individual defendants);

and an action against TDCJ pursuant to the Texas Tort Claims Act, see TEX. CIV. PRAC &

REM. CODE ANN. § 101.021 (West 2011). As relief, he requested: 1) a declaration that the

acts and omissions described in the petition violated his rights under “Texas State

Law;” 2) a jury trial; 3) costs; and 4) compensatory damages in the amount of $350,000

“against the defendants.”


2This section is titled, “Violations of the Civil Rights of Person in Custody; Improper Sexual Activity
With Person in Custody.”



Walters v. TDCJ                                                                                 Page 3
        In a “Memorandum” filed a month and a half after the filing of the original

petition, Walters clarified his action against the supervisory individual defendants by

including them in the Texas Tort Claims Act cause of action. In a later response to the

TDCJ defendants’ motion to dismiss and plea to the jurisdiction, Walters made a point

to correct the TDCJ defendants’ misconception that he was pursuing a common-law

negligence cause of action against the supervisory individual defendants when he was

pursuing his claim against them via the Texas Tort Claims Act.

        Although there is some language used in his petition and in the memorandum

that could be included within the realm of a § 1983 action, such as “color of law” in the

petition and “violation of civil rights” in the memorandum, we do not believe they were

sufficient to call to the attention of the trial court or the TDCJ defendants that Walters

was making a claim under § 1983. See TEX. R. CIV. P. 47(a). This is especially so in light

of Walters’ response that the TDCJ defendants misconstrued his pleading, felt the need

to have it corrected, but did not include a clarification or correction that he was alleging

a § 1983 claim. It appears from Walters’ pleadings that he intended to only assert a

criminal complaint against Stallings3 and a claim under the Texas Tort Claims Act

against the remaining defendants. Walters had ample opportunity to contend or clarify

that his claims were pursuant to § 1983 and not subject to a plea to the jurisdiction. He



3 The Penal Code, however, does not create private causes of action and a victim does not have standing
to participate as a party in a criminal proceeding. See TEX. CONST. art. I, § 30(e); TEX. CODE CRIM. PROC.
ANN. art. 56.02(d) (West Supp. 2012).

Walters v. TDCJ                                                                                    Page 4
did not. He did not suggest he was trying to raise a § 1983 claim until his brief on

appeal. This is too late.

       Accordingly, because there was no indication in Walters’ petition or any other

trial court pleading that he was raising a § 1983 claim, the trial court did not err in

failing to interpret Walters’ petition as a § 1983 cause of action. Walters’ first, third, and

fifth issues are overruled.

       In his second issue, Walters contends that the trial court abused its discretion in

not holding a hearing pursuant to section 14.003 of the Texas Civil Practice and

Remedies Code. The motion to dismiss filed by the defendants, however, was not

pursuant to Chapter 14; thus, section 14.003 does not apply. Further, even if section

14.003 applied, the trial court's decision whether to conduct a hearing on a motion to

dismiss under section 14.003 is discretionary. See TEX. CIV. PRAC. & REM. CODE ANN. §

14.003(c) (West 2002) (the court "may hold a hearing" to determine whether to dismiss

claim); Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001, no pet). Walters

also argues that the trial court could have held a hearing like the one held in Spears v.

McCotter, 766 F.2d 179 (5th Cir. 1985).       However, the hearing held in Spears was

pursuant to the Magistrates Act, 28 U.S.C. § 636(b)(1), wherein a district court may ask a

magistrate to determine the factual basis of a prisoner’s allegations. Walters has not

cited a comparable provision applicable to Texas courts or that such a procedure is

required. His second issue is overruled.


Walters v. TDCJ                                                                         Page 5
       Walters next contends that the trial court abused its discretion in denying

Walters’ request for findings of fact. Pursuant to Rule 296 of the Texas Rules of Civil

Procedure, a party may request the trial court to state its findings of fact and

conclusions of law in writing. TEX. R. CIV. P. 296. If a trial court fails to timely do so, the

party making the request must file a notice of past due findings of fact and conclusions

of law.   Id. 297.   Walters contends that the trial court should have construed his

“Response to Defendants Motion to Dismiss” as a request for findings of fact and

conclusions of law and his Bill of Exceptions as a notice of past due findings of fact and

conclusions of law. After review, we find no indication that these documents were

intended to be anything other than what they were designated. Even if Walters was

properly entitled to make a request for findings of fact and conclusions of law, an issue

we expressly are not deciding, the trial court had no reason to believe that Walters was

requesting written findings of fact and conclusions of law by the referenced documents.

Walters’ fourth issue is overruled.

       Walters also asserts that the trial court erred in dismissing the individual

defendants pursuant to section 101.106(c) of the Texas Civil Practice and Remedies

Code because such a dismissal is not available in a § 1983 cause of action. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.106 (West 2011).              Because we held there was no

indication in Walters’ petition or any other pleading that the trial court should have




Walters v. TDCJ                                                                          Page 6
known Walters was raising a § 1983 claim, § 1983 is not a bar to a dismissal in this

instance. Walters’ sixth issue is overruled.

       In his final issue, Walters asserts that the trial court erred in dismissing his suit

with prejudice. Walters cites Hickman v. Adams for the proposition that when a trial

court abuses its discretion in dismissing an inmate’s claim with prejudice, it should

determine whether the inmate’s pleading deficiencies could be remedied. See Hickman

v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Hickman is

distinguishable because that court reviewed an inmate’s suit which was dismissed with

prejudice for failure to comply with the provisions of Chapter 14 of the Texas Civil

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001 et seq.

(West 2002 & Supp. 2012). In that instance, the court held that a dismissal for failure to

comply with the conditions of section 14.004 is not a dismissal on the merits, but rather

an exercise of the trial court's discretion under Chapter 14 and not subject to a dismissal

with prejudice. Id. at 124. The problem for Walters is that the trial court did not dismiss

the case for failure to comply with the provisions of Chapter 14.           The case was

dismissed based on a plea to the jurisdiction and a motion to dismiss pursuant to

section 101.106 of the Civil Practice and Remedies Code. Walters does not address why

his case could not be dismissed with prejudice for the reasons requested by the TDCJ

defendants. See Harris County v. Sykes, 136 S.W.3d 635, 637 (Tex. 2004) (a dismissal

pursuant to a plea to the jurisdiction and section 101.106 is with prejudice because it


Walters v. TDCJ                                                                       Page 7
fully and finally adjudicates whether the claims that were asserted, or that could have

been asserted, come within the Texas Tort Claims Act's waiver of sovereign immunity).

Accordingly, Walters’ seventh issue is overruled.

       Having overruled each issue, we affirm the trial court’s judgment.

       Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b); 51.208

(West Supp. 2012); § 51.941(a) (West 2005). Under these circumstances, we suspend the

rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2.

The write-off of the fees from the accounts receivable of the Court in no way eliminates

or reduces the fees owed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
[CV06]




Walters v. TDCJ                                                                        Page 8
