                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-12-00246-CV
                          ____________________

                     CHARLES RAY MASON, Appellant

                                       V.

    ARTHUR J. WOOD, GARY E. HUNTER, BRENDA D. SPITALERI,
     PATRICIA A. STROBL AND MARCIAL J. FOISIE JR., Appellees
_______________________________________________________          ______________

                   On Appeal from the 411th District Court
                            Polk County, Texas
                        Trial Cause No. CIV24101
________________________________________________________          _____________

                         MEMORANDUM OPINION

      Charles Ray Mason appeals orders granting a motion for partial summary

judgment and a motion to dismiss filed by Cynthia Wood in her capacity as

administrator of the Estate of Arthur J. Wood, and by Gary Hunter, Brenda

Spitaleri, Patricia Strobl, and Marcial Foisie, Jr. The appellees are correctional

officers and Mason is an inmate who claims the correctional officers committed




                                        1
various torts in the course of confiscating property Mason had in his cell. We

affirm the trial court‟s judgment.

      Correctional officers conducting an annual check of Mason‟s cell in 2007

decided that Mason had excess property or contraband in his possession. Certain

property was confiscated and Mason signed a confiscation form that requested that

“TDCJ make appropriate disposition of this property.” Mason filed a grievance,

which was resolved by an administrative determination that Mason had requested

to have the property disposed of and that he failed to show that the correctional

officers were responsible for items that Mason alleged were lost. Before the thirty-

first day after receiving notice of the denial of his grievance, Mason filed a lawsuit

against the individual officers for confiscating and immediately destroying

Mason‟s property without conducting a hearing. Mason asserted statutory claims

under the Tort Claims Act, the Deceptive Trade Practices Act, and the Theft

Liability Act, a civil rights claim, and a common law claim for fraud.1 See Tex.

Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 2011 & Supp. 2012); §§

134.001-.005 (West 2011); Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (West 2011

& Supp. 2012); 42 U.S.C. § 1983 (2003). The trial court dismissed the suit. See

Tex. Civ. Prac. & Rem. Code Ann. § 14.010 (West 2002). On appeal, we held that
      1
      The trial court dismissed the Deceptive Trade Practices Act claim in 2010.
Mason does not challenge that order in this appeal.
                                          2
the trial court erred in dismissing the suit with prejudice, and remanded the case to

the trial court. Mason v. Wood, 282 S.W.3d 189, 194 (Tex. App.—Beaumont 2009,

no pet.). After remand, the trial court granted appellees‟ summary judgment on

Mason‟s constitutional due process claim and Tort Claims Act claim, and

dismissed the Theft Liability Act claim and common law fraud claim under the

election of remedies provision of the Tort Claims Act. See Tex. Civ. Prac. & Rem.

Code Ann. § 101.106.

      In issue one, Mason contends his state law tort claims against the appellees

are not barred by operation of the election of remedies provision of the Tort Claims

Act because he raised a fact issue that the appellees acted outside the scope of their

employment. He invokes the ultra vires rule, which holds that “while

governmental immunity generally bars suits for retrospective monetary relief, it

does not preclude prospective injunctive remedies in official-capacity suits against

government actors who violate statutory or constitutional provisions.” City of El

Paso v. Heinrich, 284 S.W.3d 366, 368-69 (Tex. 2009). Because Mason seeks

retrospective damages for property that was destroyed without giving him a

hearing, he cannot litigate this action as an ultra vires suit. Id. at 376.

      Mason also argues that his claim could not have been brought against the

governmental unit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Mason

                                            3
contends a fact issue exists regarding whether the officers intentionally confiscated

his property because he is a “[w]rit [w]riter,” which he argues is intentional

conduct for which immunity is waived under section 101.057 of the Tort Claims

Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057. He misreads section

101.057, which provides that the Tort Claims Act does not apply to conduct arising

out of an intentional tort. See id.; see also Presiado v. Sheffield, 230 S.W.3d 272,

275 (Tex. App.—Beaumont 2007, no pet.) (“The Texas Tort Claims Act does not

waive sovereign immunity for intentional acts.”).

      Mason argues this Court‟s decision in Presiado means he may pursue a state

law claim for intentional torts against the officers in their individual capacities.

See Presiado, 230 S.W.3d at 275. Presiado does not address the application of

section 101.106(f) of the Civil Practice and Remedies Code. Id. The Tort Claims

Act provides an election of remedies, as follows:

      If a suit is filed against an employee of a governmental unit based on
      conduct within the general scope of that employee‟s employment and
      if it could have been brought under this chapter against the
      governmental unit, the suit is considered to be against the employee in
      the employee‟s official capacity only. On the employee‟s motion, the
      suit against the employee shall be dismissed unless the plaintiff files
      amended pleadings dismissing the employee and naming the
      governmental unit as defendant on or before the 30th day after the
      date the motion is filed.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

                                         4
      The Tort Claims Act defines “„[s]cope of employment‟” as “the performance

for a governmental unit of the duties of an employee‟s office or employment and

includes being in or about the performance of a task lawfully assigned to an

employee by competent authority.” Id. § 101.001(5). Officials act within the scope

of employment if their acts fall within the duties generally assigned to them. Ollie

v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 791 (Tex. App.—Dallas 2012, pet.

denied). Mason concedes that the inspection of his personal property in the course

of a unit shakedown is a function within the scope of the officers‟ duties, but he

argues that sovereign immunity does not apply because he sued the officers in their

individual capacities.

      A government employee is entitled to dismissal if the suit could have been

brought against the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. §

101.106(f). The phrase “under this chapter” includes suits for which immunity is

not waived. Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011). “Properly

construed, section 101.106(f)‟s two conditions are met in almost every negligence

suit against a government employee: he acted within the general scope of his

employment, and suit could have been brought under the Act—that is, his claim is

in tort and not under another statute that independently waives immunity.” Id. at

381. The phrase “could have been brought” applies without regard to whether the

                                         5
Tort Claims Act waives immunity from suit. Id. at 385. Mason also argues the

officers failed to establish they were performing discretionary functions, but they

are not required to do so for section 101.106(f) to apply to Mason‟s state law tort

claims. Id. at 384-85 (holding amendment to section 101.106(f) had the same effect

as the Westfall Act in making “whatever remedy the [Federal Tort Claims Act]

provided against the United States a claimant‟s exclusive remedy for a government

employee‟s conduct in the scope of employment”).

      In this case, Mason alleged the officers committed theft and fraud when they

confiscated his property. By his own admission, the “shakedown” was a function

within the officers‟ duties as State employees. A plaintiff cannot, through artful

pleading, make a common law tort claim a statutory claim under the Theft Liability

Act. Their conduct was, as Mason admits, subject to the prison grievance system. 2

The commentary from the Restatement of Agency states:

      If an employee commits a tort while performing work assigned by the
      employer or while acting within a course of conduct subject to the
      employer‟s control, the employee‟s conduct is within the scope of
      employment unless the employee was engaged in an independent
      course of conduct not intended to further any purpose of the employer.




      2
        See Tex. Dep‟t of Crim. Justice, Offender Orientation Handbook 53
(2004), available at http://www.tdcj.state.tx.us/documents/Offender_Orientation_
Handbook_English.pdf
                                        6
RESTATEMENT (THIRD)      OF   AGENCY § 7.07 cmt. b (2006). Accordingly, Mason‟s

tort claims “could have been brought under this chapter against the governmental

unit[.]” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Franka, 332 S.W.3d at

379. We overrule issue one.

      In his second issue, Mason contends the trial court erred in dismissing his

suit against the officers in their individual capacities because the doctrine of

sovereign immunity applies only to governmental units. Section 101.106 describes

the circumstances under which a suit against an individual government employee

must be dismissed. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Mason

argues that intentional torts fall outside the scope of employment and as a result, he

may sue the appellees in their individual capacities. Intentional torts may be

within the scope of employment if “the course of conduct in which the tort

occurred is within the scope of employment.” RESTATEMENT (THIRD) OF AGENCY §

7.07 cmt. c (2006). The current version of section 101.106 protects employees in

their individual capacities. See Franka, 332 S.W.3d at 381 (“This construction of

section 101.106(f) does, however, foreclose suit against a government employee in

his individual capacity if he was acting within the scope of employment.”). We

overrule issue two.




                                          7
      In his third issue, Mason contends a genuine issue of material fact exists as

to his civil rights, theft, and fraud claims. The trial court granted summary

judgment on Mason‟s section 1983 claim because the grievance procedure

provides an adequate post-deprivation remedy. See 42 U.S.C. § 1983. “[A]n

unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause of

the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d

393 (1984). State law provides an administrative remedy to pay inmates‟ claims

for property lost or damaged by the Department of Criminal Justice. See Tex.

Gov‟t Code Ann. §§ 501.007-.008 (West 2012) (addressing compensation process

for inmate claims of lost or damaged property and establishing an inmate grievance

system). “Because they have an adequate post-deprivation remedy, inmates in

Texas have no arguable basis in law for asserting a section 1983 due process claim

for the intentional destruction of their property by a prison official.” Hamilton v.

Pechacek, 319 S.W.3d 801, 814 (Tex. App.—Fort Worth 2010, no pet.).




                                         8
         Mason argues the resolution of Administrative Grievance No. 2007199057

and Administrative Directive 03.72 raise fact issues on his state tort claims. 3

Neither document appears in the summary judgment record. Summary judgment

proof must be attached to the summary judgment motion or response. MBank

Brenham, N.A. v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986); Bell v. AIC-Sunbelt

Grp., Inc., No. 03-06-00399-CV, 2008 WL 1765259, at *2 (Tex. App.—Austin

Apr. 17, 2008, pet. denied) (mem.op.). Mason cannot rely on documents that were

not provided to the trial court to show on appeal that he raised a genuine issue of

material fact to defeat the motion for summary judgment. We overrule issue three

and affirm the trial court‟s judgment.

         AFFIRMED.




                                                  ________________________________
                                                            CHARLES KREGER
                                                                Justice



Submitted on November 26, 2012
Opinion Delivered March 14, 2013

Before McKeithen, C.J., Kreger and Horton, JJ.
         3
             This grievance number is not the same as the grievance on which the suit is
based.
                                              9
