In The
Court of Appeals Ninth District of Texas at Beaumont ___________________
NO. 09-12-00517-CV ___________________
CHRISTOPHER KARONE TURNER, Appellant
V.
TDCJ-ID ALLEN B. POLUNSKY UNIT, Appellee _________________________________________________________________ _
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV 27156 _________________________________________________________________ _
MEMORANDUM OPINION
Appellant Christopher Karone Turner appeals from the trial court’s dismissal
of his lawsuit with prejudice for lack of subject matter jurisdiction. We affirm the
trial court’s order of dismissal.
BACKGROUND
Turner, an inmate, sued appellee TDCJ-ID Allen B. Polunsky Unit
(“TDCJ”) for alleged negligence arising from a disciplinary case brought against
him after a prison fight in which he says he did not participate. According to
1 Turner’s petition, the fight was recorded on security cameras under the supervision
and operation of unit administrators and security supervisors. Turner pleaded that
after reviewing the camera footage, administrators negligently identified him as a
participant in the fight, locked him in a solitary cell, falsely charged him with a
disciplinary case, and wrongfully found him guilty of fighting despite video
footage “clearly showing that [Turner] was just standing by watching the fight and
never participated . . . .” Turner alleged he was punished with restrictions and his
custody class was demoted. According to Turner’s petition, the disciplinary case
was ultimately overturned after he endured a demoted custody class and
restrictions.
Turner asserted that TDCJ negligently implemented its policies and
negligently charged him with a disciplinary violation. According to Turner’s
petition, TDCJ and its employees, by their alleged use of tangible property,
negligently caused Turner personal injuries, including extreme anxiety, mental
anguish, distress, severe acute headaches, traumatic depression, and high blood
pressure. In addition, Turner pleaded that sovereign immunity was waived by the
use of tangible property by TDCJ employees. Turner sought $180,000 for personal
injuries and $60,000 for “past/future injury damages[.]”
2 TDCJ filed a plea to the jurisdiction, in which it alleged that sovereign
immunity barred Turner’s lawsuit because the waiver of sovereign immunity in the
Texas Tort Claims Act (“TTCA”) did not apply to Turner’s alleged claims. TDCJ
requested that the trial court grant its plea to the jurisdiction and sign an order
dismissing with prejudice Turner’s claims as frivolous. The trial judge signed the
requested order. In his sole issue on appeal, Turner argues that the trial court
abused its discretion by granting TDCJ’s plea to the jurisdiction and dismissing his
claim with prejudice because his claim falls within the waiver of sovereign
immunity in section 101.021(2) of the TTCA. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2) (West 2011).
We review the trial court’s dismissal under an abuse of discretion standard.
Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). We will
affirm the trial court’s dismissal if it was proper under any legal theory. Johnson v.
Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). In forma pauperis suits by
inmates, such as Turner’s lawsuit, are governed by Chapter 14 of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-
14.014 (West 2002 & Supp. 2012). Section 14.003(a)(2) provides that a trial court
may dismiss a claim if the trial court finds that the claim is frivolous or malicious.
Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, a trial
3 court may consider whether (1) the claim’s realistic chance of ultimate success is
slight, (2) the claim has no arguable basis in law or fact, (3) it is clear that the party
cannot prove facts in support of the claim, or (4) the claim is substantially similar
to a previous claim filed by the inmate because the claim arises from the same
operative facts. Id. § 14.003(b).
The State of Texas may not be sued for damages in its own courts without its
consent. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003).
The State’s sovereign immunity from suit defeats a trial court’s subject matter
jurisdiction. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign immunity also
protects governmental units of the State, such as TDCJ. Tex. Civ. Prac. & Rem.
Code Ann. § 101.001(3)(A) (West Supp. 2012); Taylor, 106 S.W.3d at 694 n.3.
Section 101.021 of the TTCA contains a limited waiver by the State of its
immunity from suit in cases involving “personal injury and death . . . caused by a
condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas law.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011).
Turner’s petition indicated that his claim was for negligent implementation
of policy by using tangible property, and Turner’s petition also seemed to assert a
4 claim for negligent infliction of emotional distress. Turner claimed that TDCJ’s
employees negligently used administration records, the disciplinary case report, the
incident report, audiotape recorders, security cameras, and a solitary cell during the
disciplinary proceeding against him. The essence of Turner’s complaint appears to
be that TDCJ employees negligently used the video footage from the cameras,
leading them to incorrectly identify him as one of the inmates in the fight and
causing Turner to suffer discipline.
Under section 101.021(2) of the TTCA, the plaintiff must allege a personal
injury caused by a “condition or use” of “tangible personal or real property.” Id.
“[I]nformation is not tangible personal property, since it is an abstract concept that
lacks corporeal, physical, or palpable qualities.” Tex. Dep’t of Public Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001) (citing Univ. of Tex. Med. Branch at
Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994)). “[S]imply reducing
information to writing on paper does not make the information ‘tangible personal
property.’” Id. (footnote omitted). In Petta, the Texas Supreme Court held that
information contained in policy and training manuals was not tangible personal
property and, therefore, did not give rise to a claim under the TTCA. Id. at 581.
According to the Court, Petta’s claim that the Texas Department of Public Safety
failed to devise adequate tests to assess the competence of its trooper was barred
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In The
Court of Appeals Ninth District of Texas at Beaumont ___________________
NO. 09-12-00517-CV ___________________
CHRISTOPHER KARONE TURNER, Appellant
V.
TDCJ-ID ALLEN B. POLUNSKY UNIT, Appellee _________________________________________________________________ _
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV 27156 _________________________________________________________________ _
MEMORANDUM OPINION
Appellant Christopher Karone Turner appeals from the trial court’s dismissal
of his lawsuit with prejudice for lack of subject matter jurisdiction. We affirm the
trial court’s order of dismissal.
BACKGROUND
Turner, an inmate, sued appellee TDCJ-ID Allen B. Polunsky Unit
(“TDCJ”) for alleged negligence arising from a disciplinary case brought against
him after a prison fight in which he says he did not participate. According to
1 Turner’s petition, the fight was recorded on security cameras under the supervision
and operation of unit administrators and security supervisors. Turner pleaded that
after reviewing the camera footage, administrators negligently identified him as a
participant in the fight, locked him in a solitary cell, falsely charged him with a
disciplinary case, and wrongfully found him guilty of fighting despite video
footage “clearly showing that [Turner] was just standing by watching the fight and
never participated . . . .” Turner alleged he was punished with restrictions and his
custody class was demoted. According to Turner’s petition, the disciplinary case
was ultimately overturned after he endured a demoted custody class and
restrictions.
Turner asserted that TDCJ negligently implemented its policies and
negligently charged him with a disciplinary violation. According to Turner’s
petition, TDCJ and its employees, by their alleged use of tangible property,
negligently caused Turner personal injuries, including extreme anxiety, mental
anguish, distress, severe acute headaches, traumatic depression, and high blood
pressure. In addition, Turner pleaded that sovereign immunity was waived by the
use of tangible property by TDCJ employees. Turner sought $180,000 for personal
injuries and $60,000 for “past/future injury damages[.]”
2 TDCJ filed a plea to the jurisdiction, in which it alleged that sovereign
immunity barred Turner’s lawsuit because the waiver of sovereign immunity in the
Texas Tort Claims Act (“TTCA”) did not apply to Turner’s alleged claims. TDCJ
requested that the trial court grant its plea to the jurisdiction and sign an order
dismissing with prejudice Turner’s claims as frivolous. The trial judge signed the
requested order. In his sole issue on appeal, Turner argues that the trial court
abused its discretion by granting TDCJ’s plea to the jurisdiction and dismissing his
claim with prejudice because his claim falls within the waiver of sovereign
immunity in section 101.021(2) of the TTCA. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2) (West 2011).
We review the trial court’s dismissal under an abuse of discretion standard.
Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). We will
affirm the trial court’s dismissal if it was proper under any legal theory. Johnson v.
Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). In forma pauperis suits by
inmates, such as Turner’s lawsuit, are governed by Chapter 14 of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-
14.014 (West 2002 & Supp. 2012). Section 14.003(a)(2) provides that a trial court
may dismiss a claim if the trial court finds that the claim is frivolous or malicious.
Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, a trial
3 court may consider whether (1) the claim’s realistic chance of ultimate success is
slight, (2) the claim has no arguable basis in law or fact, (3) it is clear that the party
cannot prove facts in support of the claim, or (4) the claim is substantially similar
to a previous claim filed by the inmate because the claim arises from the same
operative facts. Id. § 14.003(b).
The State of Texas may not be sued for damages in its own courts without its
consent. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003).
The State’s sovereign immunity from suit defeats a trial court’s subject matter
jurisdiction. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign immunity also
protects governmental units of the State, such as TDCJ. Tex. Civ. Prac. & Rem.
Code Ann. § 101.001(3)(A) (West Supp. 2012); Taylor, 106 S.W.3d at 694 n.3.
Section 101.021 of the TTCA contains a limited waiver by the State of its
immunity from suit in cases involving “personal injury and death . . . caused by a
condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas law.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011).
Turner’s petition indicated that his claim was for negligent implementation
of policy by using tangible property, and Turner’s petition also seemed to assert a
4 claim for negligent infliction of emotional distress. Turner claimed that TDCJ’s
employees negligently used administration records, the disciplinary case report, the
incident report, audiotape recorders, security cameras, and a solitary cell during the
disciplinary proceeding against him. The essence of Turner’s complaint appears to
be that TDCJ employees negligently used the video footage from the cameras,
leading them to incorrectly identify him as one of the inmates in the fight and
causing Turner to suffer discipline.
Under section 101.021(2) of the TTCA, the plaintiff must allege a personal
injury caused by a “condition or use” of “tangible personal or real property.” Id.
“[I]nformation is not tangible personal property, since it is an abstract concept that
lacks corporeal, physical, or palpable qualities.” Tex. Dep’t of Public Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001) (citing Univ. of Tex. Med. Branch at
Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994)). “[S]imply reducing
information to writing on paper does not make the information ‘tangible personal
property.’” Id. (footnote omitted). In Petta, the Texas Supreme Court held that
information contained in policy and training manuals was not tangible personal
property and, therefore, did not give rise to a claim under the TTCA. Id. at 581.
According to the Court, Petta’s claim that the Texas Department of Public Safety
failed to devise adequate tests to assess the competence of its trooper was barred
5 by sovereign immunity because the claim involved misuse or non-use of
information. Id.
In this case, Turner alleges that TDCJ employees negligently viewed and
utilized the information contained on the video camera recordings of the fight, and
created administrative records, disciplinary reports, and incident reports based
upon their mistaken identification of Turner on the video camera recordings. We
conclude that, as in Petta, Turner’s claims involve the misuse or non-use of
information, and are therefore barred by sovereign immunity. See id. at 580-81. To
the extent that Turner alleges a claim for negligent infliction of emotional distress,
such a cause of action no longer exists in Texas. Boyles v. Kerr, 855 S.W.2d 593,
599-600 (Tex. 1993). With respect to Turner’s contention concerning his
placement in a solitary cell, we note that Turner has not alleged that his injury was
caused by the cell itself, but rather by his wrongful placement there based upon
erroneously-interpreted information from security cameras. Therefore, we
conclude that sovereign immunity is not waived with respect to Turner’s claim
regarding being placed in the solitary cell. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(2) (Injury must be caused by the use of tangible real or personal
property.).
6 For all of the reasons discussed above, we conclude that the trial court did
not abuse its discretion by finding Turner’s claim frivolous and dismissing his case
with prejudice because the claim lacks an arguable basis in law. See id; Petta, 44
S.W.3d at 580-81; Boyles, 855 S.W.2d at 599-600; see also Tex. Civ. Prac. &
Rem. Code Ann. § 14.003(b); Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268,
274 (Tex. App.—Texarkana 2003, no pet.) (Generally, the proper remedy when a
court lacks subject matter jurisdiction is dismissal without prejudice.); but see also
Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000,
no pet.) (When a dispositive defect in an inmate’s suit cannot be remedied,
dismissal with prejudice is proper.). Accordingly, we overrule Turner’s sole issue
and affirm the trial court’s judgment.
AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
Submitted on June 6, 2013 Opinion Delivered June 27, 2013 Before McKeithen, C.J., Gaultney and Kreger, JJ.