                                  NO. 07-03-0139-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                   MARCH 21, 2005

                         ______________________________


                         MICHAEL W. BROWN, APPELLANT

                                           V.

                       JANIE COCKRELL, ET AL., APPELLEE


                       _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

               NO. 90,609-B; HONORABLE JOHN B. BOARD, JUDGE

                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Appellant Michael W. Brown, a prison inmate acting pro se, filed a complaint alleging

that Ninfa Islas, an employee of the Texas Department of Criminal Justice, wrongfully

confiscated and converted postage stamps belonging to Brown having a value of $15.13,

and further alleging that Islas and Chris Wieck, also a TDCJ employee, misused a State

form by not ensuring that two correctional guards witnessed the inventorying of his
property. Brown’s complaint also names Janie Cockrell, Director of the Texas Department

of Criminal Justice, alleging she has failed to provide a procedure whereby prisoners can

gather evidence to substantiate claims against prison guards. With the complaint, Brown

filed an affidavit of inability to pay costs. The trial court dismissed the suit before service

of process pursuant to Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ.

Prac. & Rem. Code Ann. § 14.003(a)-(b) (Vernon 2002). Brown appeals the dismissal. We

affirm the trial court’s order.


       When an inmate files a lawsuit and an affidavit of inability to pay costs, the suit may

be dismissed if the court finds it is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann.

§ 14.002. In determining whether a claim is frivolous or malicious, the court may consider

whether it has no arguable basis in law. Id., § 14.003(b)(2). Trial courts have broad

discretion to determine whether a case should be dismissed under Chapter 14. Retzlaff

v. Texas Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App.–Houston [14th Dist.]

2002, pet. denied); Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex.App.–Tyler 1994,

no writ). We will not interfere with the exercise of that discretion absent proof the trial court

abused its discretion, acting arbitrarily or unreasonably in light of all the circumstances in

the case, without reference to any guiding rules and principles. Lewis v. Johnson, 97

S.W.3d 885, 886-87 (Tex.App.–Corpus Christi 2003, no pet.).


       The Texas Department of Criminal Justice–Institutional Division is a governmental

unit of the State of Texas. See Tex. Civ. Prac. & Rem. Code Ann. §101.001(3)(A) (Vernon

Supp. 2004). In Texas, a governmental unit is immune from suit and liability unless the

State consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003);

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Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Governmental

immunity from suit defeats a court’s subject matter jurisdiction. Whitley, 104 S.W.3d at 542.

In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity. Id.


       Although appellant’s petition does not specifically state whether his claims against

Islas and Wieck are brought in their individual or official capacities, it does identify them as

correctional officers and guards, and suggests the actions of which he complains were

taken in the course of their employment. Suits against government employees in their

official capacity are in fact claims against the government. Ware v. Miller, 82 S.W.3d 795,

800 (Tex.App.–Amarillo 2002, pet. denied); Friona Indep. Sch. Dist. v. King, 15 S.W.3d

653, 657 n.3 (Tex.App.–Amarillo 2000, no pet.). See Brandon v. Holt, 469 U.S. 464, 471

(1985).


       Brown’s claim of misuse of a State form and references to the Texas Tort Claims Act

indicate he is attempting to allege that the officers’ use of tangible personal property caused

him personal injury, thereby placing his claim within the Tort Claims Act’s waiver of the

State’s immunity from suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon

1997). Although the paper on which a form is printed is tangible, Brown’s claim that he lost

his postage stamps because State employees misused the form by failing to ensure that

it was completed correctly does not fall within the Tort Claims Act’s waiver of immunity for

at least two reasons. First, the substance of Brown’s complaint is that guards did not

witness the inventory of his property, permitting his stamps to be confiscated improperly.

The loss of the stamps was not “caused by” the use of the tangible form. See University

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of Tex. Med. Branch v. York, 871 S.W.2d 175, 178-79 (Tex. 1994); Russell v. Texas Dep’t

of Human Resources, 746 S.W.2d 510, 513 (Tex.App.–Texarkana 1988, writ denied).

Second, section 101.021(2) of the Tort Claims Act waives immunity with respect to claims

for personal injury and death. Brown’s complaint involves loss of property.


       To the extent Brown’s complaint simply seeks recovery for the confiscation of his

stamps, we note that this court, among others, has applied the doctrine of de minimis non

curiat lex to affirm the dismissal as frivolous of suits brought by inmates over the claimed

confiscation by prison employees of property having insignificant value. See Hammonds

v. Camp, 2004 WL 769373, at *2 (Tex.App.–Amarillo April 12, 2004, no pet.); Smith v.

Velasquez, 1995 WL 217206, at *3 (Tex.App.–Houston [1st Dist.] April 13, 1995, writ

denied), cert. denied, 516 U.S. 1054, 116 S. Ct. 725, 133 L. Ed. 2d 677 (1996); Smith v.

Stevens, 822 S.W.2d 152 (Tex.App.–Houston [1st Dist.] 1991, writ denied). See also

Thompson v. Mannix, 814 S.W.2d 811, 812 (Tex.App.–Waco 1991, no writ) (finding trial

court could have invoked doctrine).


       Further, where the purpose of a proceeding against state officials is to control an

action of the State or subject it to liability, it is a suit against the State within the rule of

immunity of the State from suit. Griffin v. Hawn, 161 Tex. 422, 424, 341 S.W.2d 151, 152

(1960). The trial court reasonably could have concluded that Brown’s claims asserted

against the director of the TDCJ, complaining of her failure to adopt or implement policies

and procedures, fall in that category. There is nothing in Brown’s pleadings to indicate that

a waiver of immunity or legislative consent applies to his complaint against the director. See

generally Tex. Civ. Prac. & Rem. Code Ann. § 107.001-.002. Without a waiver of immunity

                                              -4-
or legislative consent, the trial court lacked subject matter jurisdiction to hear the suit and

did not abuse its discretion in dismissing it.


       Finding the trial court’s dismissal of appellant’s suit was not an abuse of its

discretion, we affirm its order.




                                           James T. Campbell
                                               Justice




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