                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00541-CV
                           ____________________

               CHRISTOPHER KARONE TURNER, Appellant

                                         V.

                             VERA S. FOX, Appellee
_______________________________________________________            ______________

                    On Appeal from the 411th District Court
                             Polk County, Texas
                         Trial Cause No. CIV 27157
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Christopher Karone Turner, a prison inmate, sued Vera S. Fox, a

correctional officer. He claimed that the confiscation of a pair of boots constituted

theft. See Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a) (West 2011). The trial

court granted Fox’s motion for summary judgment. Turner filed this appeal.

      Turner’s pro se petition alleged that another prison employee confiscated

Turner’s personal property and gave it to Fox to store. According to Turner, Fox

eventually returned his personal property to him, except for the pair of boots.

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Turner filed a Step 1 grievance asking for the return of, or reimbursement for, his

boots. The Step 1 grievance was denied on the basis that the boots were

confiscated “due to questionable ownership. The boots that were confiscated were

a size 11; the boots that [Turner] purchased from the Commissary were a size 10.”

He filed a Step 2 grievance, claiming that Fox and Marsh stole his boots, that they

falsely reported that the boots were confiscated “for ownership[,]” and that he had

requested that his confiscated property be destroyed. His Step 2 grievance was

denied on the basis that there was no violation of policy or procedure, and there

was a lack of evidence supporting his claims.

      Turner sued Fox under the Texas Theft Liability Act in her individual

capacity. Turner alleges that the boots were a gift from his now-deceased brother-

in-law, and that Fox’s alleged theft of the boots has caused him “great suffering of

depression, stress, and mental and emotional anguish.” Turner seeks $121,000 in

actual and punitive damages.

      Fox filed a motion for summary judgment on the grounds that Turner is

unable to prove the boots were confiscated unlawfully, and he effectively

consented to property confiscation. Fox also argued that Turner could not show

that Fox is not entitled to official immunity, because she was acting within the

scope of her authority, performing discretionary duties, and had a good faith belief

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that the confiscated boots had questionable ownership. The trial court granted

Fox’s motion and dismissed Turner’s claims with prejudice.

       The Theft Liability Act provides that “[a] person who commits theft is

liable for the damages resulting from the theft.” Tex. Civ. Prac. & Rem. Code Ann.

§ 134.003(a). The Act defines theft as “unlawfully appropriating property or

unlawfully obtaining services,” as described in certain Penal Code sections. Id. §

134.002(2) (West 2011). A person commits theft “if he unlawfully appropriates

property with intent to deprive the owner of property. . . . Appropriation of

property is unlawful if: (1) it is without the owner’s effect consent; . . . [or] the

property is stolen and the actor appropriates the property knowing it was stolen by

[someone else]. . . .” Tex. Penal Code Ann. § 31.03(a),(b) (West Supp. 2012). The

Theft Liability Act sets out the damages recoverable by a person who has been the

victim of theft. Tex. Civ. Prac. & Rem. Code Ann. § 134.005 (West 2011).

      In two issues challenging the summary judgment, Turner maintains he can

prove all elements of his claim under the Texas Theft Liability Act, and that Fox is

not entitled to official immunity. A movant for summary judgment has the burden

of showing that there is no genuine issue of material fact and that she is entitled to

judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-

49 (Tex. 1985). A moving defendant must either negate at least one element of the

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plaintiff”s theory of recovery or plead and conclusively establish each essential

element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d

910, 911 (Tex. 1997); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

      Fox argued in her summary judgment motion that under Texas

Administrative Directive 3.72, an inmate who possesses property while

incarcerated in the TDCJ consents to TDCJ’s rules and regulations regarding the

acquisition, possession, storage, and disposition of that property. According to Fox,

the   Administrative    Directive   cites       “questionable”   “ownership/legitimate

possession” as one of the reasons for permissible confiscation. The pleadings

before the trial court at the time it granted the motion showed that Turner’s boots

were confiscated because he could not provide adequate proof of ownership of the

boots.1 Fox was acting under lawful authority as a correctional officer in not

returning the boots despite Turner’s requests; she did not unlawfully appropriate

the boots. See Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a); Tex. Penal Code

Ann. § 31.03(a),(b); see also Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004)

(Confiscation of items under the authority of a prison administrative directive is

not a random, unauthorized act by a state employee.).
      1
         Turner requests that he be allowed to supplement the record with “newly
discovered evidence.” We can only consider the matters on file with the trial court
at the time the trial court granted Fox’s motion for summary judgment. See Tex. R.
Civ. P. 166a(c).
                                            4
      Furthermore, even if the pleadings could be construed to allege a tort rather

than a theft, Fox would be entitled, under the circumstances, to a dismissal. See

Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002) (official immunity); see

also Franka v. Velasquez, 332 S.W.3d 367, 379-84 (Tex. 2011) (discussing Tex.

Civ. Prac. & Rem. Code § 101.106(f)). When applicable, official immunity shields

governmental employees from personal liability for the performance of their

official duties. See Telthorster, 92 S.W.3d at 460-61. To obtain a summary

judgment based on this affirmative defense, the governmental employee must

establish that she acted in good faith in performing a discretionary duty within the

scope of her authority. Id. at 461. To establish good faith, the movant must show

“that a reasonably prudent officer, under the same or similar circumstances, could

have believed that his conduct was justified based on the information he possessed

when the conduct occurred.” Id. at 465. To controvert this showing, a respondent

must offer evidence that no reasonable state employee in the officer’s position

could have believed that facts were such that they justified her conduct. See id. If

officers of reasonable competence could disagree, “the officer acted in good faith

as a matter of law.” Id.

      Turner’s ownership of the boots was questioned because they were not his

size. Turner did not present credible evidence of ownership. As part of a grievance

                                         5
process, two other officers conducted independent investigations and also

concluded Turner presented insufficient evidence of ownership. A reasonably

prudent officer could have believed that her conduct was justified based on the

information Fox possessed when the conduct occurred.

      Issues one and two are overruled. The trial court’s judgment is affirmed.

      AFFIRMED.


                                         ________________________________
                                                  DAVID GAULTNEY
                                                        Justice

Submitted on September 19, 2013
Opinion Delivered October 24, 2013

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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