                           NUMBER 13-07-00656-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JAMES O'DELL WALTON,                                                      Appellant,

                                          v.

TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, ET AL.,                                                 Appellees.


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


                        MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Vela
               Memorandum Opinion by Justice Rodriguez

      Appellant, James O'Dell Walton, a prison inmate, appeals pro se from the dismissal

of his suit against appellees, the Texas Department of Criminal Justice (TDCJ), TDCJ

employees Joe D. Mireles, Rick E. Villareal, Martha Navejas Gallegos, Evelyn Castro,

Rene Maldonado, Tomas Sanchez, Mary A. Cowan, Cathy L. Moore, David R. Diaz,
Aurelio Ambriz, Domingo A. Carrillo, Alfonso Castillo, Eileen Kennedy, Gilbert L. Herrera,

Joella Puente, Kelli Ward, and the Officer of the Inspector General of the TDCJ. By two

issues with numerous sub-issues, appellant contends that he was "deprived of some of the

most essential steps provided by law." Appellant's issues relate to the merits of his case

and claims of conspiracy against the trial court. Because we determine that the TDCJ and

its employees are immune from prosecution, we need not address the issues presented,

and we affirm the judgment of the trial court.

                                       I. Background

       On August 31, 2004, appellant filed a lawsuit against appellees alleging a number

of intentional torts, including neglect, refusal to perform duties owed to appellant, threats

of assault, forgery of documents, perjury, conspiracy, denial of access to the mail, denial

of access to the courts, destruction of mail, destruction of property, section 1983 violations

of constitutional rights under the 5th, 8th, and 14th Amendments, assault, failure to

investigate, failure to provide medical treatment, retaliation, and harassment. Appellant

made claim for all of these causes of action under the Texas Tort Claims Act (TTCA). See

TEX . CIV. PRAC . & REM . CODE ANN . § 101.001-.109 (Vernon 2005 and Supp. 2008). He also

alleged a cause of action under title 42, section 1983 of the United States Code for

separately enumerated allegations. See 42 U.S.C. § 1983. The TDCJ and the individual

defendants denied appellant's claims and asserted their entitlement to various affirmative

defenses, including sovereign, official, and qualified immunities.

       On October 4, 2006, the TDCJ filed a plea to the jurisdiction under section

101.106(e) of the TTCA to dismiss all of the individual defendants. See TEX . CIV. PRAC .

& REM . CODE ANN . § 101.106(e) (Vernon 2005). The district court granted the plea to the

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jurisdiction on November 7, 2006, and dismissed everyone except the TDCJ from the

lawsuit, leaving the TDCJ as the only defendant.

       On October 3, 2007, the TDCJ filed its own plea to the jurisdiction based on

sovereign immunity, claiming that the limited waiver of immunity under the TTCA does not

apply to intentional torts. See id. §§ 101.021, 101.057 (Vernon 2005). On October 8,

2007, after a hearing, the trial court granted the plea to the jurisdiction and dismissed the

lawsuit with prejudice by final order signed on October 12, 2007. This appeal ensued.

                       II. Standard of Review and Applicable Law

       A plea to the jurisdiction is the proper way to challenge the subject-matter

jurisdiction of the trial court. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39

(Tex. 1999) (per curiam); City of Waco v. Williams, 209 S.W.3d 216, 219 (Tex. App.–Waco

2006, pet. denied). Whether a trial court has subject-matter jurisdiction is a question of law

subject to de novo review. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002). In a case involving sovereign immunity, the court looks to

the plaintiff's pleadings and any relevant evidence to decide whether sovereign immunity

has been waived. Tex. Dep't of Crim. Justice v. Millwer, 51 S.W.3d 583, 587 (Tex. 2001);

Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).

       Section 101.106(e) of the Texas Civil Practices and Remedies Code provides that

if a suit is filed against both a governmental unit and its employees, the employees shall

be dismissed on the filing of a motion by the governmental unit. See TEX . CIV. PRAC . &

REM . CODE ANN . § 101.106(e). In addition, the TTCA provides for a limited waiver of

sovereign immunity in circumstances of personal injury but only when the injury arises from



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the use of a motor vehicle or tangible personal or real property. See id. § 101.021. The

TTCA provides an exception to its waiver of immunity if the plaintiff is suing based on an

intentional tort. See id. § 101.057. When the statute does not apply because of this type

of exception, immunity is still the rule. McCord v. Mem'l Med. Ctr. Hosp., 750 S.W.2d 362,

362 (Tex. App.–Corpus Christi 1988, no writ) (citing Townsend v. Mem'l Med. Ctr., 529

S.W.2d 264, 267 (Tex. Civ. App.–Corpus Christi 1975, writ ref'd n.r.e.)).

                                        III. Analysis

                    A. Tort Claims Under the Texas Tort Claims Act

       All of the alleged tortfeasors in the instant case are employees of the TDCJ. Thus,

they were properly dismissed by the trial court when the TDCJ filed its plea to the

jurisdiction to dismiss its employees. See TEX . CIV. PRAC . & REM . CODE ANN . § 101.106(e).

Moreover, the acts alleged by appellant are not negligent, but intentional torts. Appellant

alleges a broad conspiracy where corrections officers and grievance officers conspired to

assault him with a pocket knife and frame him in a grievance hearing by putting on false

and perjured testimony. These claims all fall within the intentional tort exception to the

TTCA and were properly dismissed because of the TDCJ's sovereign immunity. See id.

§ 101.057.

                                  B. Section 1983 Claim

       Moreover, the State is not a "person" under title 42, section 1983 of the United

States Code. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, a

State governmental unit is not subject to section 1983 claims. Tex. Dep't of Pub. Safety

v. Petta, 44 S.W.3d 575, 581 (Tex. 2001). Appellant has alleged that his constitutional



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rights were violated and brought a cause of action under section 1983. Because the TDCJ

is a unit of the State government, and not a person, it is not subject to appellant's section

1983 cause of action. See Will, 491 U.S. at 71.

       Accordingly, appellant's sole issue is overruled.

                                      IV. Conclusion

       We affirm the judgment of the trial court.




                                                    NELDA V. RODRIGUEZ
                                                    Justice

Memorandum Opinion delivered and
filed this 21st day of August, 2008.




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