

 




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,			         Appellees.


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


MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Chief Justice Valdez

 
 Appellant Kirk Wayne McBride, Sr., an inmate proceeding pro se, filed suit against
the Texas Department of Criminal Justice ("the Department") because it allegedly violated
his constitutional rights by not providing him notice of a grievance proceeding decision. 
The trial court dismissed McBride's claims with prejudice for lack of jurisdiction.  By a single
issue, McBride contends the trial court erred in dismissing his claims.  We reverse and
remand.
I. Background
	While an inmate at a Department facility, McBride was charged with possession of
an alcoholic beverage, a facility infraction, and the Department entered findings against
him in a disciplinary hearing.  On September 14, 2004, McBride filed a "Step 1 Grievance"
of the disciplinary hearing.  The Department denied McBride's grievance on September 29. 
McBride alleged that he did not receive notice of the Department's decision on his Step 
1 Grievance until October 21, 2004.  After he received notice, McBride filed a "Step 2
Grievance."  In his Step 2 Grievance, McBride alleged that he did not receive notice of the
Department's decision in the Step 1 Grievance proceeding.  The Department summarily
denied McBride's Step 2 Grievance, and it notified McBride that the file was closed.
	On January 10, 2005, McBride filed suit against the Department.  McBride claimed
that the Department's denial of his Step 2 Grievance without adequate notice was a denial
of administrative and constitutional rights.  He sought a judgment declaring that the
Department had violated his constitutional rights by not providing him with notice of the
decision in the Step 1 Grievance proceeding.  McBride also sought an injunction to order
the Department to provide him notice of the Step 1 Grievance proceeding so that he could
proceed with his administrative remedies. 
	The Department filed an answer generally denying McBride's allegations. 
Additionally, the Department asserted that: (1) the McBride's claims were frivolous; (2) it
enjoyed sovereign immunity from the suit; and (3) it was entitled to attorney's fees.  On
February 15, 2006, the Department filed a plea to the jurisdiction.  In its plea, the
Department argued that the trial court lacked jurisdiction because McBride's claims were
barred by sovereign immunity.  The Department further argued that the claims should be
construed as a challenge to a disciplinary action, which can only be raised through a
habeas corpus proceeding.  McBride responded to the Department's plea by arguing that
it had waived immunity from suit by requesting attorney's fees.  A telephonic hearing was
held on February 15, 2006.  On July 28, 2006, the trial court granted the Department's plea
to the jurisdiction and signed an order dismissing McBride's claims with prejudice.  This
interlocutory appeal ensued.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(2)
(Vernon Supp. 2007).
II. Discussion
	A plea to the jurisdiction seeks dismissal because the trial court lacks subject-matter
jurisdiction to consider the cause.  Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004).  Whether a trial court has subject-matter jurisdiction is a question of law subject to
de novo review.  Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Dep't of Family &
Protective Servs. v. Atwood, 176 S.W.3d 522, 527 (Tex. App.-Houston [1st Dist.] 2004,
pet. denied).  Ordinarily, if sovereign immunity is implicated, an inmate may not bring
review of his TDCJ institutional disciplinary hearing before state district courts unless
sovereign immunity is waived.  State Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001). 
	On appeal, McBride argues that the trial court abused its discretion in dismissing his
claims because the Department waived sovereign immunity by seeking affirmative relief
in the form of attorney's fees.  We agree.  In a similar case, we held that the Department's
claim for attorney's fees is considered a claim for affirmative relief that waives sovereign
immunity.  Powell v. Tex. Dep't of Crim. Justice, 251 S.W.3d 783, 790-91 (Tex.
App.-Corpus Christi 2008, pet. filed).  Under our holding in Powell, the Department has
waived sovereign immunity in this case by seeking affirmative relief in the form of
attorney's fees.  Id.  McBride's sole issue is sustained.
III. Conclusion
	The dismissal order of the district court is REVERSED and the case is REMANDED
for further proceedings consistent with this opinion.
							________________________
							ROGELIO VALDEZ
							Chief Justice	

Memorandum Opinion delivered and 
filed this the 31st day of July, 2008. 
