
 
 

 

NUMBER 13-06-192-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



ARTHUR LEE POWELL, JR.,						        	Appellant,

v.


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


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

 


O P I N I O N


Before Chief Justice Valdez and Justices Benavides and Vela

Opinion by Justice Benavides


	This appeal arises from the dismissal of appellant Arthur Powell's suit against the
Texas Department of Criminal Justice ("TDCJ") and two of its police officers, Miguel
Martinez and Gilbert Herrera.  We must decide whether the trial court erred by (1) granting
Martinez's special exceptions and dismissing Powell's claim; (2) granting TDCJ's plea to
the jurisdiction based upon sovereign immunity although the agency sought attorneys'
fees; or (3) granting TDCJ's plea to the jurisdiction based upon sovereign immunity
although Powell sought only declaratory relief.  We reverse and remand.
I. Factual Background
	Arthur Lee Powell, Jr. is an inmate at the TDCJ McConnell Unit in Beeville, Texas. 
According to Powell's petition, on October 27, 2004, Powell was told by Officer Miguel
Martinez to walk along the right side of a yellow line in an orderly manner.  Powell believes
he obeyed this command.  Powell alleges that thirty minutes later, he was approached in
his living area and placed in handcuffs by another officer named L. Hagar.  Hagar informed
Powell that Martinez ordered the restraints imposed for Powell's failure to walk on the right
side of the yellow line.  Powell was later charged with "Creating a Disturbance," an
institutional disciplinary infraction.  Powell believed that Martinez created this charge in
retaliation for complaints made by Powell's family members, at Powell's request, regarding
Powell's mistreatment at the facility by TDCJ officials, including Martinez.
	Powell received a disciplinary hearing on the matter.  At the hearing, Powell
maintained that he had done nothing to warrant discipline.  He alleged that Martinez had
become irritated by phone calls that Powell's family members had been making to
complain about Powell's treatment at the facility, and thus in retaliation for the perceived
nuisance, Martinez charged Powell with an offense that Powell did not actually commit. 
According to Powell's petition, Powell requested to call several witnesses on his behalf. 
However, Powell was not allowed to call Hagar as a witness.  The disciplinary hearing
officer found that a preponderance of evidence substantiated the disciplinary charge
against Powell.

	Powell then appealed this decision within TDCJ pursuant to TDCJ's procedural rules
by filing a step one and step two grievance.  See Tex. Civ. Prac. & Rem. Code Ann. §§
14.001-.014 (Vernon 2002).  He argued that the hearing officer's refusal to allow Powell
to call witnesses was a procedural error that denied him due process.  The TDCJ,
however, found that Powell's appeal lacked merit. 
	When Powell failed to prevail through the grievance process, he filed suit in Bee
County district court against TDCJ, Martinez, and Officer Gilbert Herrera, who is in charge
of disciplinary matters at the TDCJ McConnell Unit.  No facts were alleged against Herrera. 
With regard to Martinez, the petition complained that Martinez charged Powell with a
disciplinary infraction in retaliation for his and his family's complaints about his treatment
at the facility, in violation of Powell's rights under the First and Fourteenth Amendments to
the United States Constitution.  U.S. Const. amends. I, XIV.  Powell sought a declaratory
judgment that his rights had been violated.  He also requested compensatory damages.
	With regard to TDCJ, Powell alleged that the administrative decision upholding the
finding of guilt in the disciplinary proceedings was not based on sufficient evidence. 
Additionally, Powell argued that he was not allowed to present Hagar as a witness during
the disciplinary hearing, in violation of his Due Process right under the Fourteenth
Amendment.  Powell did not specify what particular type of relief he sought with regard to
this violation. 
	Martinez, Herrera, and TDCJ filed an answer generally denying the allegations in
the petition.  In addition, the defendants sought attorneys' fees and costs incurred in
defending the suit.

	The two police officers then filed special exceptions, and TDCJ filed a plea to the
jurisdiction.  Martinez and Herrera excepted to the petition's allegation that Powell was
denied the right to present witnesses at the hearing, arguing that the petition never alleged
that Martinez or Herrera played any part in the decision to disallow witnesses.  Herrera
further excepted that the petition did not allege any acts or omissions by Herrera that would
subject him to liability.  Finally, Martinez excepted to the petition's allegation of a First
Amendment violation as conclusory, which Martinez asserted was insufficient to overcome
his official immunity.  TDCJ responded by filing a plea to the jurisdiction based on
sovereign immunity.  TDCJ alleged that Powell's petition did not set forth facts or law
supporting a waiver of sovereign immunity.
	On February 13, 2006, the trial court held a hearing to address the special
exceptions.  Powell was permitted to participate in the hearing by telephone.  During the
hearing, Martinez's counsel argued that Powell's claim lacked sufficient specificity to
overcome a police officer's qualified immunity from civil rights suits.  At the close of the
hearing, the court allowed Powell two weeks to amend his petition in order to respond to
Martinez's special exceptions and to file a written response to the exceptions and plea to
the jurisdiction, and it dismissed the suit against Herrera in its entirety. (1)
	Nine days later, on February 22, Powell filed a "Written Response and Objections
to the Defendant's Special Exceptions and Plea to the Jurisdiction," stating that he had
already pleaded "facts sufficient to show that Defendant Martinez's conduct violated the
Plaintiff's constitutional rights" and insisting that official immunity "is an affirmative defense
that must be plead[ed] and proved."  Additionally, he argued that because TDCJ sought
attorneys' fees and costs, it waived its sovereign immunity.  Furthermore, Powell argued
that his suit sought review of the TDCJ's administrative decision upholding his disciplinary
infraction, which did not implicate sovereign immunity.  
	On March 20, the district court dismissed Powell's suit against both Martinez and
the TDCJ.  Powell now appeals.
II. Analysis
	On appeal, Powell argues that the trial court erred in three respects: (1) granting
Officer Martinez's special exceptions and dismissing Powell's suit; (2) granting TDCJ's plea
to the jurisdiction based upon sovereign immunity because TDCJ waived immunity by filing
a counterclaim for affirmative relief; and (3) granting TDCJ's plea to the jurisdiction based
upon sovereign immunity although Powell sought merely declaratory relief.
A. 	Martinez's Special Exceptions
	In his first issue, Powell argues that the trial court erred in granting Martinez's
special exceptions and dismissing Powell's suit.  We agree.
 "The purpose of a special exception is to compel clarification of pleadings when the
pleadings are not clear or sufficiently specific or fail to plead a cause of action."  Baylor
Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007); Villareal v. Martinez, 834 S.W.2d
450, 451 (Tex. App.-Corpus Christi 1992, no writ).  Pleadings in Texas "must consist of a
statement in plain and concise language of the plaintiff's cause of action."  Tex. R. Civ. P.
45(b).  Courts follow a "fair notice" standard for pleadings, which means that in order for
the pleadings to be considered sufficient the opposing party must be able to ascertain the
nature and basic issues of the controversy from reading the pleading.  Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).  A petition is sufficient if it gives
"fair and adequate notice of the facts upon which the pleader bases his claim," thereby
giving the opposing party "information sufficient to enable him to prepare a defense."  Id.
at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).
	Deficient pleadings may be challenged by filing special exceptions which "point out
intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or
other insufficiency in the allegations."  Tex. R. Civ. P. 91; see also Castano v. San Felipe
Agric., Mfg., & Irrigation Co., 147 S.W.3d 444, 453 (Tex. App.-San Antonio 2004, no pet.). 
Pleadings are to be upheld when "the technical elements of a cause of action, without
allegations of ultimate facts to be proved," are alleged.  Rodriguez v. Yenawine, 556
S.W.2d 410, 415 (Tex. App.-Austin 1977, no writ).  To force a party to plead his entire
case with exactness "is not concordant with the spirit of the rules governing pleadings." 
Estate of Menifee v. Barrett, 795 S.W.2d 810, 812 (Tex. App.-Texarkana 1990, no pet.).
	When special exceptions addressed to the pleadings are sustained by the trial court,
the party may amend his or her pleadings to meet the exceptions or may refuse to amend
and test the validity of the trial court's dismissal of the suit on appeal.  Cox v. Galena Park
Indep. Sch. Dist., 895 S.W.2d 745, 749 (Tex. App.-Corpus Christi 1994, no writ); Spillman
v. Simkins, 757 S.W.2d 166, 167-68 (Tex. App.-San Antonio 1988, no writ).  If the party
chooses to stand on the pleadings and appeal the dismissal, then the appellate court must
evaluate two distinct rulings: (1) whether the trial court erred in sustaining the defendant's
special exceptions to the pleadings, and (2) whether the trial court erred in dismissing the
suit.  Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.-Dallas 1993, writ dism'd w.o.j.).  A trial
court's ruling on special exceptions is reviewed for abuse of discretion.  Baylor Univ., 221
S.W.3d at 635; Ross v. Goldstein, 203 S.W.3d 508, 512 (Tex. App.-Houston [14th Dist.]
2006, no pet.); Mulvey v. Mobil Producing Tex. & N.M., Inc., 147 S.W.3d 594, 603 (Tex.
App.-Corpus Christi 2004, pet. denied).  The test for abuse of discretion is whether the trial
court acted without reference to guiding rules or principles.  Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (1985).
	Here, Martinez asserted that the accusation that he had "retaliated against [Powell]
for having [Powell's] family members call the facility by charging [Powell] with a disciplinary
infraction" was not pleaded with adequate supporting facts.  The trial court agreed with
Martinez, and it allowed Powell two weeks to amend his petition to address Martinez's
exception.  Although Powell filed a response, it appears his intent was to stand on the
original pleadings.  Rather than arguing new facts, the updated document merely reads,
"Plaintiff has plead[ed] specific facts sufficient to show that Defendant Martinez's conduct
violated the Plaintiff's constitutional rights."  Furthermore, Powell rejected the idea that he
needed to provide greater specificity, and instead he asserted that the burden was upon
Martinez to plead and prove his affirmative defense.  We agree with Powell. (2)
	First, it was not necessary for Powell's petition to be presented in great evidentiary
detail.  See Tex. R. Civ. P. 45(b).  The trial court merely needed to determine whether the
petition failed to state a claim providing fair notice to the opponent regarding the nature and
basic issues of the controversy.  Id.  An attorney of reasonable competence can read
Powell's petition and easily ascertain that Powell's claim against Martinez was for a
deprivation of his First Amendment rights.  See Yenawine, 556 S.W.2d at 414 (stating that
the test of whether pleadings state a claim is to determine whether an "attorney of
reasonable competence" can ascertain the nature and basic issues of the controversy). 
The merit of Powell's allegations--if any--is not a matter to be assessed at the pleadings
stage; it must be developed through the trial process.  Id. at 415. 
	Second, Martinez's only complaint below was that Powell's petition was too
"conclusory" to overcome Martinez's official immunity.  This contention is wrong in two
respects.  Officers are entitled to official immunity arising out of their performance of (1)
discretionary duties (2) in good faith (3) and within the scope of their authority.  City of
Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Perry v. Texas A & I Univ., 737
S.W.2d 106, 110 (Tex. App.-Corpus Christi 1987, writ ref'd n.r.e.).  Official immunity,
however, is an affirmative defense, and the burden is on the officer to plead and prove all
three elements of this affirmative defense.  Chambers, 883 S.W.2d at 653.  Official
immunity is not an issue that can or should be decided upon a special exception.  Salcedo
v. Diaz, 647 S.W.2d 51, 54 (Tex. App.-El Paso 1983) (severing claims against Dr. Diaz,
reversing trial court's granting of special exception based on official immunity), writ ref'd
n.r.e., 650 S.W.2d 67 (Tex. 1983).  In fact, the case cited by Martinez for the proposition
that Powell was somehow required to plead around Martinez's official immunity was a
summary judgment case, which we believe is the appropriate procedural vehicle for raising
an official immunity affirmative defense.  See Padilla v. Mason, 169 S.W.3d 493, 503 (Tex.
App.-El Paso 2005, pet. denied).  Thus, Martinez's argument that Powell had to "plead
around" his official immunity is rejected.  
	Additionally, Powell asserted a claim for compensatory damages and a claim for
declaratory relief.  A claim for declaratory relief, however, is not subject to the defense of
official immunity because it does not attempt to subject the officer to liability.  See Morse
v. Frederick, 127 S.Ct. 2618, 2624 n.1 (2007) (qualified immunity shields public officials
from money damages, not injunctive or declaratory relief); City of El Paso v. Heinrich, 198
S.W.3d 400, 407 (Tex. App.-El Paso 2006, pet. granted) (official immunity does not apply
to action for declaration that official acted in violation of constitutional rights); see Tex. Nat.
Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).  Thus,
Martinez's argument also fails for this reason.
	Powell's pleadings against Martinez for violating his First Amendment rights, we
believe, met the minimum standards of sufficiency under rule 45 of the rules of civil
procedure.  Tex. R. Civ. P. 45.  It was an error and an abuse of discretion for the trial court
to dismiss the claim on a special exception.  Cole, 864 S.W.2d at 566.  Whether Powell
has a meritorious claim is a question for another day.  Powell's first issue, therefore, is
sustained.
B.	Defendant's Request for Affirmative Relief
	In his second and third issues, Powell argues that the trial court erred in granting
TDCJ's plea to the jurisdiction.  First, Powell argues that sovereign immunity was not
implicated because he sought declaratory relief against the TDCJ.  Second, Powell argues
that TDCJ is subject to the jurisdiction of the district court because the agency's request
for attorneys' fees constitutes a claim for affirmative relief that waives the sovereign
immunity to which a state agency may otherwise be entitled.  On both issues, we agree
with Powell.
	Sovereign immunity protects the state of Texas, its agencies, and its officials from
lawsuits for damages.  Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997),
superseded by statute on other grounds as stated in Gen. Servs. Comm'n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001).  In the absence of consent to suit by the
state or the particular state agency, a trial court lacks subject-matter jurisdiction.  Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Texas Dep't. of Transp. v.
Jones, 8 S.W.3d 636, 638 (Tex. 1999).
	Ordinarily, if sovereign immunity is implicated, an inmate may not bring a review of
his TDCJ institutional disciplinary hearing before state district courts unless sovereign
immunity is waived.  State Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). 
Instead, the inmate must pursue his case through a TDCJ grievance system provided for
by statute.  Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (Vernon 2002); Bohannon
v. Tex. Bd. of Cr. Justice, 942 S.W.2d 113, 117 (Tex. App.-Austin 1997, writ denied); see
also Pena v. McDowell, No. 12-05-00116-CV, 2007 Tex. App. LEXIS 2559, at *4 (Tex.
App.-Tyler March 30, 2007, no pet.) (stating that "[c]hapter 14 was designed to control the
flood of frivolous lawsuits being filed in the courts of this state by prison inmates,
consuming valuable judicial resources with little offsetting benefit.").  An inmate may only
avoid this strict procedural requirement by demonstrating that the state agency waived the
sovereign immunity to which it is otherwise entitled.  Miller, 51 S.W.3d at 587.
	Under the facts of the instant case, we believe TDCJ cannot claim sovereign
immunity because the type of relief which Powell appears to have requested--declaratory
relief--does not implicate sovereign immunity.  Moreover, to the extent that sovereign
immunity may be implicated, it was waived by TDCJ's request for affirmative relief in the
form of attorneys' fees.
1.	Powell's Request for Declaratory Relief Does Not Implicate Sovereign Immunity
	As we have stated before, "[c]ertain actions against state officials have been found
not to implicate the sovereign immunity doctrine, and for such actions, no consent is
required."  Nueces County v. Ferguson, 97 S.W.3d 205, 217 (Tex. App.-Corpus Christi
2002, no pet.).  For example, a declaratory judgment action or a suit alleging
unconstitutional acts is an action to settle "uncertainty and insecurity with respects to rights,
status, and other legal relations," as anticipated by the Declaratory Judgment Act.  Id. at
217-18.  Suits that merely seek to compel officials to act as required by law do not attempt
to subject the state to liability, and they do not implicate sovereign immunity.  Id. at 218.
	In the instant case, TDCJ argues that Powell did not assert a declaratory judgment
claim against it.  We agree that in Powell's petition, it is not entirely clear whether he
sought declaratory relief from TDCJ as well as Martinez.  TDCJ, however, did not specially
except to Powell's petition, and therefore it is presumed to have understood the claim
against it.  See Tex. R. Civ. P. 90; Tex. R. App. P. 33.1. (3)  Thus, to the extent Powell seeks
declaratory relief, TDCJ would not be entitled to sovereign immunity under the above
authorities.  Ferguson, 97 S.W.3d at 217-18.
2.	TDCJ's Request for Affirmative Relief Waives Sovereign Immunity
	When sovereign immunity is implicated, however, and a governmental entity seeks
affirmative relief, it waives immunity from suit for any claim that is "germane to, connected
with, and properly defensive to the [governmental entity]'s claims, to the extent [the private
entity]'s claims offset those asserted by the [governmental entity]."  Sweeny Cmty. Hosp.
v. Mendez, 226 S.W.3d 584, 589 (Tex. App.-Houston [1st Dist.] 2007, no pet. h.).  This
includes a state agency's counterclaim for attorneys' fees for the preparation and
prosecution of a defense because attorneys' fees are ordinarily considered a claim for
affirmative relief.  In re Frost Nat'l Bank, 103 S.W.3d 647, 650 (Tex. App.-Corpus Christi
2003, no pet.); see also In re C.A.S., 128 S.W.3d 681, 686 (Tex. App.-Dallas 2003, no
pet.) (stating that claims in an amended answer seeking reimbursement of insurance
premiums and recovery of attorneys' fees qualify as claims for affirmative relief requiring
payment of a filing fee for counterclaims); Rosenthal v. Ottis, 865 S.W.2d 525, 527 (Tex.
App.-Corpus Christi 1993, orig. proceeding); Falls County v. Perkins & Cullum, 798
S.W.2d 868, 871 (Tex. App.-Fort Worth 1990, no writ); ECC Parkway Joint Venture v.
Baldwin, 765 S.W.2d 504, 514 (Tex. App.-Dallas 1989, writ denied) (stating that a claim
for attorneys' fees is a claim for affirmative relief); J. C. Hadsell & Co. v. Allstate Ins. Co.,
516 S.W.2d 211, 214 (Tex. App.-Texarkana 1974, dismissed w.o.j.).

	The dissent argues that our finding on this issue is inconsistent with the Supreme
Court's decision in Reata Const. Corp. v. City of Dallas.  See Dissenting Opinion (citing 197
S.W.3d 371, 377 (Tex. 2006)).  While we agree that Reata allows the State (and by
extension, its political subdivisions and agencies) to claim sovereign immunity in certain
limited cases in which the state seeks affirmative relief, we find no indication in Reata that
the State's pursuit of attorneys' fees is such a case.  Reata merely recognized that
exceptions to the waiver of sovereign immunity are possible, and it specifically recognized
cases in which the governmental entity intervenes in litigation by asserting "affirmative
claims for monetary relief."  Reata, 197 S.W.3d at 376.  Beyond that limited holding, Reata
did not provide guidance on the question of what other actions by state agencies would
(and would not) preserve sovereign immunity. (4)
	Thus, when we assess the facts in the instant case, we must be guided by the
substantial body of case law which unambiguously holds that claims for attorneys' fees are
claims for affirmative relief.  See Frost, 103 S.W.3d at 150.
	We emphasize again that we do not believe sovereign immunity is implicated in this
case.  See supra Part II(B)(1).  However, if sovereign immunity were implicated, TDCJ's
request for attorneys' fees is a counterclaim for relief, and therefore, TDCJ has waived
immunity.  Frost, 103 S.W.3d at 650.  Thus, the trial court abused its discretion when it
granted TDCJ's plea to the jurisdiction when the agency had already waived that right by
seeking affirmative relief.  Id.
III. Conclusion
	The district court abused its discretion in granting Martinez's special exceptions and
TDCJ's plea to the jurisdiction.  The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with this opinion.


								_____________________________
								GINA M. BENAVIDES,
								Justice

Dissenting Opinion by
Justice Rose Vela.

Opinion delivered and filed this
the 7th day of February, 2008.
1.  Powell has since admitted that he only included Herrera in the suit because he mistakenly believed
that the TDCJ agent for service of process (which was Herrera) was also required to be included as a party. 
Powell has not argued the trial court's dismissal of Herrera was error.  Thus, the dismissal of Herrera is not
preserved for review, and we need not address it in this opinion.  Tex. R. App. P. 33.1, 47.1.
2.  Martinez also challenged Powell's allegation that he was not allowed to present Hagar as a witness. 
The trial court sustained Martinez's special exceptions without providing a reason.  Powell has not challenged
the trial court's ruling on Martinez's special exception in this regard.  Therefore, we affirm the trial court's
dismissal of Powell's claim against Martinez relating to the failure to allow testimony at the hearing.  
3.  The dissent cites Crabtree v. Ray Richey & Co., 682 S.W.2d 727, 728 (Tex. App.-Fort Worth 1985,
no writ) to argue that a "defendant should not be required to file special exceptions suggesting to a plaintiff
possible causes of action."  See Dissenting Opinion.  Crabtree, however, is inapposite.  Crabtree merely
states that "where a plaintiff pleads none of the elements of a viable cause of action . . . the defendant is not
obligated to file special exceptions."  Powell did not make the mistake of the plaintiff in Crabtree--he did not
fail to plead any of the elements of a cause of action against TDCJ.  Indeed, Powell pleaded the elements so
well that TDCJ apparently believed he was suing it and seeking declaratory relief.  That is presumably why
TDCJ responded to his petition with a plea to the jurisdiction based upon sovereign immunity, rather than
responding with special exceptions seeking clarification.
4.  The dissent notes that in Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d
25, 32 (Tex. App.-San Antonio 2006, pet. filed), the court of appeals found that "a general pleading for costs
is not the type of affirmative claim contemplated in Reata."  See Dissenting Opinion.  The principle expressed
by the dissent is inapplicable in the instant case, however, because here attorneys' fees are at issue--not
costs.  See Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 162 (Tex. App.-Corpus Christi 2003, no
pet.) ("'Costs' do not generally include costs billed to the client as part of an attorney fee.").  Thus, Bexar
County, which makes absolutely no mention of how Reata applies to a governmental entity's claim for
attorneys' fees, is inapposite. 

