                           NUMBER 13-17-00296-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

DERRICK HARVEY,                                                          Appellant,

                                         v.

DARREN MAYER,                                                             Appellee.


                  On appeal from the 156th District Court
                         of Bee County, Texas.



                      MEMORANDUM OPINION
           Before Justices Contreras, Longoria, and Hinojosa
              Memorandum Opinion by Justice Longoria

      Appellant Derrick Harvey is an inmate housed in the Texas Department of Criminal

Justice—Institutional Division (TDCJ—ID) at the McConnel Unit in Beeville, Texas.

Harvey brought suit pro se and in forma pauperis against Darren Mayer, an employee of

TDCJ—ID, for theft and conversion. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.002

(West, Westlaw through 2017 1st C.S.). The trial court dismissed Harvey’s claims with
prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. See

id. § 14.001–.014 (West, Westlaw through 2017 1st C.S.). Harvey argues that the trial

court erred by dismissing his case against Mayer; in the alternative, Harvey argues that

his suit should have been dismissed without prejudice as opposed to with prejudice. We

affirm.

                                          I. BACKGROUND

          On September 21, 2016, Harvey filed suit against Mayer for conversion and theft

of money in the amount of $640 from his inmate trust fund account. According to Harvey,

Mayer approached him on or about June 15, 2016 to become a confidential informant.

Harvey refused his offer and shortly thereafter was charged with trafficking. On June 17,

2016, a disciplinary hearing was held; Harvey was found guilty, and $640 was removed

electronically from his trust fund account. On June 20, 2016, Harvey filed a step one

grievance concerning the disciplinary hearing and alleged procedural errors. On June

27, 2016, Harvey filed another step one grievance complaining about the $640 removed

from his account and requesting that it be returned. On July 27, 2016, Harvey filed a step

two grievance related to his first grievance, seeking reversal of the disciplinary action. On

September 16, 2016, Harvey filed a step two grievance related to his second grievance.

          On May 17, 2017, the Office of the Attorney General (OAG) filed an amicus curiae

advisory asking the court to dismiss the case. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 14.003–.005 (West, Westlaw through 2017 1st C.S.). On May 23, 2017, the trial court

dismissed all of Harvey’s claims with prejudice “for failure to comply with Chapter 14 of

the Texas Civil Practices and Remedies Code.” This appeal ensued.

                                       II. DISCUSSION



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       In one issue with multiple sub-issues, Harvey argues that the trial court erred by

dismissing his claims. Specifically, Harvey claims the trial court erred by implicitly finding

that: 1) he failed to exhaust his administrative remedies; 2) he filed a false affidavit of

poverty; and 3) his claims were frivolous or malicious. Alternatively, he argues that the

trial court should have dismissed his case without prejudice instead of with prejudice.

A. Standard of Review

       We review a dismissal under Chapter 14 for an abuse of discretion. Moreland v.

Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Jackson v.

Tex. Dep’t of Crim. Justice—Inst. Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi

2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, and

without reference to any guiding principles or rules. Brewer v. Collins, 857 S.W.2d 819,

822 (Tex. App.—Houston [1st Dist.] 1993, no writ). However, we review the specific issue

of whether a suit has an arguable basis in law de novo. See Moreland, 95 S.W.3d at 394.

B. Applicable Law

       A trial court may dismiss an inmate’s claim, either before or after service of

process, on any number of grounds. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN.

§§ 14.003–.006; see also Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston

[1st Dist.] 2011, no pet.); Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston

[1st Dist.] 2006, no pet.) (“A trial court may dismiss an inmate’s lawsuit for failing to comply

with the procedural requirements of Chapter 14.”). Trial courts have broad discretion in

dismissing a case under Chapter 14 because: “(1) prisoners have a strong incentive to

litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are

not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state



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officials, courts, and meritorious claimants.” Retzlaff v. Tex. Dep’t of Criminal Justice, 94

S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

       A trial court may dismiss an inmate’s claim as frivolous or malicious under chapter

14 based on the following factors: the claim’s ultimate chance of success; whether the

claim has an arguable basis in law or fact; whether it is clear that the party cannot prove

facts in support of the claim; or whether the claim is substantially similar to a previous

claim filed by the petitioner because it arises from the same operative facts. TEX. CIV.

PRAC. & REM. CODE ANN. § 14.003(a)(2), (b)(2); see Hamilton v. Williams, 298 S.W.3d

334, 339 (Tex. App.—Fort Worth 2009, pet. denied). “A claim has no arguable basis in

law if it relies upon an indisputably meritless legal theory.” Fernandez v. T.D.C.J., 341

S.W.3d 6, 13 (Tex. App.—Waco 2010, no pet.) (quoting Hamilton, 298 S.W.3d at 339).

For example, a case barred by sovereign immunity has no arguable basis in law and

renders a lawsuit frivolous under Chapter 14. See Hamilton v. Pechacek, 319 S.W.3d

801, 811 (Tex. App.—Fort Worth 2010, no pet.); see also McCray v. Langehenning, No.

13-07-00143-CV, 2008 WL 3906395, at *1 (Tex. App.—Corpus Christi Aug. 26, 2008, no

pet.). Dismissal with prejudice is improper if the dismissal is based on procedural defects

that the inmate can correct. See Fernandez, 341 S.W.3d at 13. However, if the claim

has no arguable basis in law, then dismissal with prejudice is proper. Id.

C. Analysis

       We will first address whether Harvey’s claims were frivolous or malicious because

we find this issue dispositive. See TEX. R. APP. P. 47.1. Harvey’s claims against Mayer

are based on the allegation that Mayer took his personal property, i.e., money from his

inmate trust account. Under Section 101.106 of the Texas Tort Claims Act,



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       [i]f 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) (West, Westlaw through 2017 1st C.S.).

In other words, a suit is completely foreclosed against a government employee when sued

in his individual capacity if he is acting within the scope of his employment. See Franka

v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). In Franka, the court held that a case is

considered against an employee within his or her official capacity if: (1) the defendant

was an employee of a governmental unit; (2) the defendant was acting within the general

scope of his employment; and (3) the suit could have been brought under the Tort Claims

Act against the agency. See id.

       Harvey does not dispute, and it is clear from the record, that Mayer is an employee

of a governmental unit. See Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San

Antonio 2013, no pet.). As to the second Franka prong, the Texas Tort Claims Act defines

scope of employment as “the performance for a governmental unit of the duties of an

employee’s office or employment and includes being in and about the performance of a

task lawfully assigned to an employee by a competent authority.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.001(5) (West, Westlaw through 2017 1st C.S.). Scope of employment

“extends to job duties to which the official has been assigned, even if the official errs in

completing the task.” Lopez, 414 S.W.3d at 894. Because it is not disputed that it was

within Mayer’s job duties to confiscate property, we find it clear from the record that Mayer

was acting within the scope of his employment. See id. (finding, where the inmate alleged

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that the defendants committed theft by taking money from his inmate trust fund account,

that the TDCJ—ID employees were acting within the scope of their employment); see

also Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).

       We also conclude that the third Franka prong is satisfied. In Franka, the court

“held that if a state employee is alleged to have committed negligence or other ‘wrongful

conduct’ in the general scope of employment, then the suit is subject to section

101.106(f) because it could have been brought against the state agency.” Lopez, 414

S.W.3d at 895.     This applies to both unintentional torts, such as negligence, and

intentional torts, such as theft. See id. (holding that a suit for theft against TDCJ—ID

employees satisfied the third Franka prong). Thus, Harvey’s suit is subject to 101.106(f),

his suit is against Mayer in his official, not individual, capacity, and Mayer would have

been able to have the case dismissed against him and have Harvey name TDCJ—ID as

the sole defendant. See id. In addition, any of Harvey’s claims against the TDCJ—ID

would be barred by sovereign immunity. See id. at 896 (observing that inmate’s suit for

theft against TDCJ—ID employees would be barred by sovereign immunity because

“[t]here is no waiver of immunity under the Texas Theft Liability Act, and the Texas Tort

Claims Act expressly does not waive immunity for intentional torts”).

       In summary, Mayer was acting in the scope of his employment, meaning that any

suit against him in his individual capacity is barred. See Franka, 332 S.W.3d at 381.

Under section 101.106(f), because Mayer is being sued in his official capacity, the proper

defendant for the case is TDCJ—ID. But the only claims Mayer could bring against

TDCJ—ID would be barred by sovereign immunity. See Lopez, 414 S.W.3d at 896. Thus,

the trial court did not abuse its discretion in dismissing Harvey’s claims because they have



                                             6
no basis in law, and it was proper to dismiss his suit with prejudice. See id.; Fernandez,

341 S.W.3d at 13; Hamilton, 298 S.W.3d at 339; see also McCray, 2008 WL 3906395, at

*1.

      Because we find that Harvey’s claims have no arguable basis in law, we need not

address his other sub-issues concerning his affidavit of poverty and the exhaustion of

administrative remedies. See TEX. R. APP. P. 47.1. We overrule Harvey’s sole issue.

                                        III. CONCLUSION

      We affirm the trial court’s judgment.

                                                       NORA L. LONGORIA
                                                       Justice


Delivered and filed the
19th day of July, 2018.




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