                              NUMBER 13-08-00726-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


FRANKLIN JONES,                                                                Appellant,

                                             v.

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE AND OFFICER HERLINDA
QUINONES,                                                                      Appellees.


      On appeal from the 36th District Court of Bee County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

       Appellant, Franklin Jones, an inmate proceeding pro se and in forma pauperis,

appeals from the trial court’s order dismissing his case for lack of jurisdiction. By three

issues, appellant contends the trial court erred in dismissing his suit because: (1) it failed

to include interest and attorneys’ fees in the “amount in controversy”; (2) “the clerk” failed
to assign the case to the “proper court”; and (3) the appellees’ plea to the jurisdiction was

untimely filed. We reverse and remand.

                                               Background

        On January 30, 2007, appellant sued appellees, the Texas Department of Criminal

Justice and its employee, Officer Herlinda Quinones (collectively “TDCJ”), alleging that

Officer Quinones improperly confiscated two bags of coffee from appellant. The petition

is addressed to the “Small Claims Court of Bee County, Texas.” However, appellant sent

his petition for filing to “Sandra Clark, District Clerk, Bee County.” The petition was filed

in district court.

        On February 22, 2008, appellees filed an original answer. On September 19, 2008,1

TDCJ filed a plea to the jurisdiction, asserting that the damages sought by appellant were

not within the district court’s jurisdictional limits. Appellant asserts that he was unable to

respond to the plea to the jurisdiction because of a thirty-day system-wide prison lockdown

ordered by Governor Rick Perry. On October 31, 2008, the trial court granted the plea to

the jurisdiction and dismissed the case without prejudice. This appeal ensued.2

                            Standard of Review and Applicable Law

        “Subject[-]matter jurisdiction is essential to a court’s authority to decide a case.”3

“A plea questioning the trial court’s subject[-]matter jurisdiction raises a question of law that


        1
        W e note that the certificate of service is dated August 26, 2008, but the docum ent is file-stam ped
Septem ber 19, 2008.

        2
         Appellant’s notice of appeal is addressed to “the United States Court of Appeals” and cites the
Federal Rules of Appellate Procedure. By order, the district court forwarded the appeal to this Court.

        3
          Acreman v.Sharp, 282 S.W .3d 251, 253 (Tex. App.–Beaum ont 2009, no pet.) (citing Bland Indep.
Sch. Dist. v. Blue, 34 S.W .3d 547, 553-54 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W .2d
440, 443 (Tex. 1993)).

                                                      2
we review de novo.”4 A plaintiff bears the burden of alleging facts showing that the trial

court has subject-matter jurisdiction.5               When deciding whether the trial court has

jurisdiction, this Court must look solely to the allegations in the petition.6 We must take the

allegations in the petition as true and construe them in favor of the pleader.7

        When a defendant asserts that the amount in controversy is below the court's

jurisdictional limit, the plaintiff’s pleadings are determinative unless the defendant

specifically alleges that the amount was pleaded merely as a sham for the purpose of

wrongfully obtaining jurisdiction, or the defendant can readily establish that the amount in

controversy is insufficient.8 The plaintiff's allegation of damages in excess of jurisdictional

limits suffices to show the amount in controversy, even if damages cannot ultimately be

proved at all.9 Were it otherwise, the plaintiff would be required to try his entire case to

show an entitlement to damages in excess of the court's jurisdictional limits.10 Because a

plaintiff is not required to prove his damages in order to support jurisdiction, the issue is not

whether there is a fact question as to the actual amount of his damages; the issue is

whether there is a fact question as to whether the actual amount of his damages is within



        4
            Id. (quoting W estbrook v. Penley, 231 S.W .3d 389, 394 (Tex. 2007)).

        5
            Tex. Ass’n of Bus., 852 S.W .2d at 446.

        6
          Harris County v. Progressive Nat’l Bank, 93 S.W .3d 381, 383 (Tex. App.–Houston [14th Dist.] 2002,
pet. denied).

        7
            Tex. Ass’n of Bus., 852 S.W .2d at 446.

        8
            Bland Indep. Sch. Dist., 34 S.W .3d at 554.

        9
            Id.

        10
             Id.

                                                          3
the court's jurisdictional limit.11 Where the trial court has not specified the grounds for

dismissal in its order, the order will be affirmed if any of the theories advanced in the

motion to dismiss supports the dismissal.12

         Prior to 1985, a district court’s minimum amount in controversy was $500.00.13

Different courts have reached different conclusions regarding the monetary amount

required to invoke a district court’s jurisdiction.14 Justice courts have jurisdiction over cases

in which the amount in controversy is not more than $10,000.00, excluding interest.15 The

justice courts have original jurisdiction over civil cases in which the amount in controversy

is $200.00 or less.16 The justice courts have concurrent jurisdiction with small-claims

courts in actions for the recovery of an amount that does not exceed $10,000.00.17

         11
              See Tex. Dep't of Parks & W ildlife v. Miranda, 133 S.W .3d 217, 227-28 (Tex. 2004).

         12
          W alker v. Gonzales County Sherrif's Dep't., 35 S.W .3d 157, 162 (Tex. App.–Corpus Christi 2000,
pet. denied).

         13
           See Acreman, 282 S.W .3d at 254 n.3 (noting that statutory am ount was om itted when form er article
1906 of Texas Revised Civil Statute was codified into governm ent code in 1985 and district court’s m inim um
am ount-in-controversy jurisdiction was deleted as part of 1985 am endm ent to article V, section 8 of the Texas
Constitution).

         14
           See id. at 253-54 (listing cases). W ithout discussing the issue, this Court has held that the
m inim um am ount needed to invoke the district court’s jurisdiction is $500.00. See Moore v. TDCJ-CID, No.
13-04-425-CV, 2005 Tex. App. LEXIS 6010, at *7 (Tex. App.–Corpus Christi Jul. 28, 2005, no pet.) (m em .
op.).

         15
           See T EX . G O V ’T C OD E A N N . § 27.031(a) (Vernon Supp. 2008). W e note that appellant’s petition was
filed January 30, 2007, before the effective date of the 2007 am endm ents to section 27.031, which changed
the m axim um jurisdictional am ount from $5,000.00 to $10,000.00. Thus, appellant’s petition is governed by
the prior version of the statute. See Act of May 19, 1991, 72nd Leg., R.S., ch. 776, § 2, 1991 Tex. Gen. Laws
2767, amended by Act of May 16, 2007, 80th Leg., R.S., ch. 383, §§ 2-5, 2007 Tex. Sess. Law Serv. 687
(current version at T EX . G O V ’T C OD E A N N . § 27.031(a) (Vernon Supp. 2008)). The recent am endm ents do not
change our analysis; thus, we cite to the current version of the statute.

         16
              See T EX . C ON ST . art. V, § 19; Garza v. Chavarria, 155 S.W .3d 252, 255 (Tex. App.–El Paso 2004,
no pet.).

         17
         See T EX . G O V ’T C OD E A N N . § 28.003(a) (Vernon Supp. 2008) (providing that “[t]he sm all claim s court
has concurrent jurisdiction with the justice court in actions by any person for the recovery of m oney in which

                                                          4
        A plea to the jurisdiction should be granted “where the court can see from the

allegations of a pleading that, even by amendment, no cause of action can be stated” to

invoke the court's jurisdiction.18

                                                       Discussion

        In his original petition, in a paragraph entitled, “Jurisdiction of the Small Claims

Court,” appellant asserts, “[t]his court has the concurrent jurisdiction over the underlying

action because the controversy does not exceed $5,000.00”; in support, appellant cites

section 28.003(a) of the government code.19 In his prayer for relief, appellant “seeks an

amount of recovery not to exceed $1,000.00.”

        In his petition, appellant asserts a claim under the Texas Theft Liability Act (“the

Act”).20 The Act provides that “[a] person who commits theft is liable for the damages

resulting from the theft.”21 It further details the damages recoverable by a person who has

been the victim of theft.22 Section 134.005 of the Act provides, in pertinent part:

        (a)       In a suit under this chapter, a person who has sustained damages

the am ount involved, exclusive of costs, does not exceed $10,000”). W e sim ilarly note that the 2007
am endm ents changed the m axim um jurisdictional am ount for sm all claim s courts from $5,000.00 to
$10,000.00, and that appellant’s petition is governed by the prior version of the statute. See Act of May 19,
1991, 72nd Leg., R.S., ch. 776, § 4, 1991 Tex. Gen. Laws 2768, amended by Act of May 16, 2007, 80th Leg.,
R.S., ch. 383, §§ 2-5, 2007 Tex. Sess. Law Serv. 687 (current version at T EX . G O V ’T C OD E A N N . § 28.003(a)
(Vernon Supp. 2008)).

        18
            See Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W .3d 393, 406 (Tex. 2000)
(Phillips, C.J., dissenting) (citing Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W .2d 910, 917 (Tex.
1960) (quoting Lone Star Fin. Corp. v. Davis, 77 S.W .2d 711, 715 (Tex. Civ. App.–-Eastland 1934, no writ))).

        19
             See T EX . G O V ’T C OD E A N N . § 28.003(a).

        20
             See T EX . C IV . P RAC . & R EM . C OD E A N N . § 134.001-.005 (Vernon 2005).

        21
          Id. § 134.003(a); see Minix v. Gonzales, 162 S.W .3d 635, 639 n.4 (Tex. App.–Houston [14th Dist.]
2005, no pet.).

        22
             T EX . C IV . P RAC . & R EM . C OD E A N N . § 134.005; see Minix, 162 S.W .3d at 639 n.4.

                                                               5
         resulting from theft may recover:

         (1) under Section 134.003(a), from a person who commits theft, the amount
         of actual damages found by the trier of fact and, in addition to actual
         damages, damages awarded by the trier of fact in a sum not to exceed
         $1,000; . . .

         ....

         (b) Each person who prevails in a suit under this chapter shall be awarded
         court costs and reasonable and necessary attorney’s fees.23

         A plain reading of this provision clearly reveals that an award of $1,000.00 statutory

damages is contingent upon an award of actual damages.24 “Actual damages,” within the

meaning of the Act, are those recoverable at common law.25 In addition to his claims under

the Act, appellant also asserts claims for conversion, “deceit,” fraud, and negligent

misrepresentation. In his prayer for relief, appellant specifically “seeks an amount of

recovery not to exceed $1,000.00, also seeking authorized actual damages of not more

than $1,000.00, under the Texas Theft Liability Act . . . .”

              TDCJ argues in its brief that “the actual amount in controversy is the value of two

(2) bags of coffee[,] which is under the jurisdictional amount for district court.” Specifically,

TDCJ contends that “[t]he specific facts show that the actual amount in controversy is the

value of the 2 bags of coffee (approximate value of $4.00). [TDCJ] allege[s] that any other



         23
            T EX . C IV . P RAC . & R EM . C OD E A N N . § 134.005. It is undisputed that appellant is not represented by
counsel. The record contains appellant’s request for court-appointed counsel and a letter from the trial judge
to appellant denying the request. The letter notes that because appellant is a plaintiff in a civil case, rather
than a defendant in a crim inal case, he is not entitled to appointed counsel. W e conclude appellant is not
entitled to recover attorneys’ fees.

         24
            Alcatel USA, Inc. v. Cisco Sys., 239 F. Supp.2d 660, 674 (E.D. Tex. 2002) (citing Rodgers v. RAB
Invs., Ltd., 816 S.W .2d 543, 551 (Tex. App.–Dallas 1991, no writ)).

         25
              See Beaumont v. Basham, 205 S.W .3d 608, 619 (Tex. App.–W aco 2006, pet. denied).

                                                            6
amount are [sic] proffered as a sham.” TDCJ also argues that appellant intended to file

his claim in small claims court, and because his case was dismissed without prejudice, he

can refile his claim with the county clerk.

       In support, TDCJ cites Chapa v. Spivey.26 In Chapa, the appellant alleged damages

in the amount of $262.50 for lost or damaged property pursuant to section 501.007 of the

government code.27 The court found that because the alleged $262.50 in damages was

below the district court’s minimum amount in controversy, the trial court did not err in

dismissing the appellant’s petition.28

       Several cases involving suits filed by pro se inmates present issues similar to the

one before us. In Westbrook v. Horton,29 a pro se inmate filed suit in district court against

various prison officials, alleging that they had seized and destroyed his property, which

consisted of legal mail and books.30 The defendants filed a plea to the jurisdiction,

contending that Westbrook had failed to plead damages within the court’s jurisdictional

limits.31 Westbrook listed about forty-five books that had been seized, and requested

$5,000.00 in compensatory damages, trebled to $15,000.00, and exemplary damages of




       26
            999 S.W .2d 833, 834 (Tex. App.–Tyler 1999, no pet.).

       27
            See id.; see also T EX . G O V ’T C OD E A N N . § 501.007 (Vernon 2004).

       28
            Chapa, 999 S.W .2d at 836.

       29
          W estbrook v. Horton, No. 02-06-00169-CV, 2007 Tex. App. LEXIS 3478, at *8 (Tex. App.–Fort
W orth May 3, 2007, no pet.) (m em . op.).

       30
            Id. at *1.

       31
            Id. at *2.

                                                          7
$10,000.00.32 The Fort Worth court found that Westbrook had pleaded damages within

the district court’s jurisdictional limits.33

         In Thomas v. Daniels, Thomas, a pro se inmate, sued various TDCJ employees in

district court for confiscating legal materials, eight books, three magazines, two

commissary bags, a fan, headphones, a radio, and a hot-pot.34 Thomas sought $500.00

for “Legal Material and Personal Property,” in addition to nominal, compensatory, and

exemplary damages.35 The TDCJ “argue[d] that Thomas failed to provide a ‘price or value’

for the property and that these items do not total $500.[00].”36 The Thomas court held that

“TDCJ ha[d] not presented any evidence showing either the value of the confiscated

property or that the value falls below the $500 requirement.”37 The court held that because

Thomas had pleaded damages in the amount of $500.00, the trial court had improperly

dismissed the suit based on subject-matter jurisdiction.38

         In Sawyer v. Texas Department of Criminal Justice—Institutional Division, Sawyer,


         32
              Id. at *7-8.

         33
              Id. at *8.

         34
         Thomas v. Daniels, No. 10-07-00108-CV, 2008 Tex. App. LEXIS 3497, at *1-2 (Tex. App.–W aco
May 14, 2008, pet. filed) (m em . op.).

         35
              Id. at *2.

         36
              Id.

         37
            Id. (citing Bland, 34 S.W .3d at 554) (“when a defendant asserts that the am ount in controversy is
below the court’s jurisdictional lim it, the plaintiff’s pleadings are determ inative unless the defendant specifically
alleges that the am ount was pleaded m erely as a sham for the purpose of wrongfully obtaining jurisdiction,
or the defendant can readily establish that the am ount in controversy is insufficient”); W estbrook, 2007 Tex.
App. LEXIS 3478, at *5 (“Appellees did not offer jurisdictional evidence attem pting to estim ate the value of
the books and m ail that W estbrook alleged they confiscated or to show that the item s’ value fell short of the
district court’s jurisdictional m inim um ”)).

         38
              Id. at *3.

                                                          8
an inmate, sued TDCJ and several of its employees in district court, alleging that they had

improperly confiscated twenty postage stamps worth $5.80.39 Sawyer's petition alleged

that he was entitled to (1) $205.80 in damages for the value of his confiscated stamps and

office supplies expended in maintaining his suit; (2) $ 10,000 in damages because he had

suffered emotional pain and suffering, personal humiliation, mental anguish, and

psychological torment and loss; and (3) $10,000 in punitive damages because the

defendants "ha[d] shown reckless and callous indifference" to his rights.40 The trial court

dismissed his case for failure to meet the minimum amount in controversy requirement.41

The Sawyer court found, however, that because he claimed damages in the amount of

$20,205.80, the trial court had subject-matter jurisdiction over his claims.42

         In the present case, appellant’s petition states that he seeks “actual damages of not

more than $1,000.00 “under the Texas Theft Liability Act. TDCJ asserts, in its brief, that

the approximate value of the coffee is $4.00, and that “any other amount are [sic] proffered

as a sham.”43 To the extent that TDCJ suggests that appellant’s demand for “damages of

         39
           Sawyer v. Tex. Dep’t of Criminal Justice–Inst’l Div., No. 01-98-00990-CV, 2002 Tex. App. LEXIS
5603, at *2 (Tex. App.–Houston [1st Dist.] 2002, pet. denied) (m em . op.) (not designated for publication). W e
note that this unpublished case, issued prior to the 2003 am endm ent to Texas Rule of Appellate Procedure
47.7, lacks precedential value. See T EX . R. A PP . P. 47.7 cm t. (“Subdivision 47.7 is revised to clarify that, with
respect to civil cases, only opinions issued prior to the 2003 am endm ent and affirm atively designated ‘do not
publish’ should be considered ‘unpublished’ cases lacking precedential value. All opinions and m em orandum
opinions in civil cases issued after the 2003 am endm ent have precedential value.”).

         40
              Id. at *6 n.3.

         41
              Id. at *3.

         42
              Id. at *7.

         43
           W e note that in its Plea to the Jurisdiction, TDCJ did not allege that the am ount in controversy was
pleaded m erely as a sham for the purpose of wrongfully obtaining jurisdiction. Rather, TDCJ pleaded only
that the am ount in controversy was “well below the court’s jurisdictional m inim um lim it of $500.” See Bland,
34 S.W .3d at 554; Dykes v. Crausbay, 214 S.W .3d 200, 202 (Tex. App.–Am arillo 2007, no pet.) (“[W ]hen
determ ining the am ount in controversy, we look at and accept as true the m onetary allegations in the petition,

                                                          9
not more than a $1000.00” is merely a sham, it was TDCJ’s burden to prove that as a

matter of law.44 We conclude that TDCJ failed to do so.

        Taking appellant’s pleadings as true, as we must, we hold that the trial court

possessed subject-matter jurisdiction over his claims.45 Because appellant’s alleged failure

to plead damages above the jurisdictional limits of the district court is the only ground upon

which TDCJ based its plea to the jurisdiction, it can be the only basis upon which the trial

court was authorized to grant the plea to the jurisdiction.46

        We reverse the trial court’s judgment and remand to the trial court for further

proceedings consistent with this opinion.



                                                           LINDA REYNA YAÑEZ,
                                                           Justice


Memorandum Opinion delivered and
filed this the 28th day of August, 2009.




unless the opponent expressly alleges that those allegations were proffered as a sham ”).

        44
             See Dykes, 214 S.W .3d at 202.

        45
             See Tex. Ass’n of Bus., 852 S.W .2d at 446; W estbrook, 2007 Tex. App. LEXIS, at *9-10.

        46
             See W alker, 35 S.W .3d at 162.

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