Presiado v. Sheffield

230 S.W.3d 272, 2007 Tex. App. LEXIS 5410, 2007 WL 2002997

• Court: Court of Appeals of Texas
• Decided: July 12, 2007
• Docket: 09-06-446 CV
• Status: Published

Opinions

OPINION

CHARLES KREGER, Justice.

Jairo Presiado, an inmate, filed suit in forma pauperis against TDCJ employees Helen Sheffield, Fernando Briseno, Steven Neal, Howard Neil, and Lloyd Massey. Presiado’s suit related to the confiscation and destruction of his personal property and his transfer to a “Gang Pod.” Presiado appeals the trial court’s order dismissing the suit with prejudice as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm in part and reverse and remand in part.

Chapter 14 applies to inmate suits in which the inmate files an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. & Rem.Code Ann. § 14.002(a) (Vernon 2002). Section 14.003 allows a court to dismiss an inmate’s claim if it determines the claim is frivolous or malicious. Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the court may consider whether the claim has no arguable basis in law or fact.. Id. § 14.003(b)(2). When the trial court does not hold a hearing on the motion to dismiss, the issue before a reviewing court is whether the trial court properly determined the lawsuit had no arguable basis in law. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex.App.-Beaumont 1999, pet. denied). We review a Chapter 14 dismissal under an abuse of discretion standard. Moore v. Zeller, 153 S.W.3d 262, 263 (Tex.App.-Beaumont 2004, pet. denied). To establish an abuse of discretion, an appellant must show the trial court acted arbitrarily or unreasonably in light of the circumstances. Jackson v. Tex. Dep’t of Crim. Justice-Inst’l Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied).

Presiado argues on appeal that the trial court erred in failing to afford him a hearing before dismissing his suit. Section 14.003(c) provides as follows: “In determining whether Subsection (a) applies, the court may hold a hearing. The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court.” Tex. Civ. Prac. & Rem.Code Ann. § 14.003(c). The statute states that the trial court “may” hold a hearing, but it does not require the trial court to do so before dismissing a claim. See Tex. Gov’t Code Ann. § 311.016(1)- (Vernon 2005) (“ ‘Ma/ creates discretionary authority or grants permission or a power.”); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.-Texarkana 2005, no pet.) (“The use of the word ‘may’ in a statute shows that the provision is discretionary and not mandatory.”); see also Long v. Tanner, 170 S.W.3d 752, 754 (Tex.App.-Waco 2005, pet. denied)(hearing not required for a trial court to determine suit has no arguable basis in law).

Presiado also maintains the trial court erred in dismissing his suit when he has a cognizable theft claim under the Texas Theft Liability Act. See Tex. Civ. Prac. & Rem.Code Ann. § 134.001-.005 (Vernon 2005). The Texas Theft Liability Act provides that “[a] person who commits theft is liable for the damages resulting from the theft” and provides damages for the victim of the theft. Id. §§ 134.003(a), 134.005.

Presiado’s petition alleged that defendants Sheffield, Briseno, Neil, and Neal entered his cell, confiscated and destroyed his personal property, and retaliated by placing Presiado in “7 bldg, G-Pod, Gang Pod, when [Presiado] is not a gang member.” Presiado stated that some of the items confiscated were returned to him, but his radio, $80 worth of commissary items, one hundred photos, and legal work had not been returned to him. Presiado states defendant Warden Massey knew of the other defendants’ acts and failed to act.

Presiado’s petition contains no statutory basis for his allegations and does not state whether he is suing the defendants in their individual or official capacities. Courts construe any petition liberally and in favor of the drafter if no special exceptions have been sustained as to that petition. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). Because the trial court did not sustain any special exceptions against Pre-siado’s petition, this Court must construe his petition liberally. See id.

To the extent, if any, Presiado was suing the defendants in their official capacities, the claims are barred by sovereign immunity. See, e.g., Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (Sovereign immunity bars intentional tort suits against state employees in their official capacities.) Theft is an intentional act. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp.2006). The Texas Tort Claims Act does not waive sovereign immunity for intentional acts. Tex. Civ. Prac. & Rem.Code Ann. § 101.057 (Vernon 2005); Hohman, 6 S.W.3d at 777.

Sovereign immunity, however, does not bar Presiado’s theft claims against defendants Sheffield, Briseno, Neil, and Neal in their individual capacities. See Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex.App.Houston [14th Dist.] 2005, no pet.) (citing Harrison v. Tex. Dep’t of Crim. Justice-Inst’l Div., 915 S.W.2d 882, 888 (Tex.App.Houston [1st Dist.] 1995, no writ)). Therefore, construing Presiado’s petition with liberality, there is an arguable basis in law as to Presiado’s Theft Liability Act claims against Sheffield, Briseno, Neil, and Neal in their individual capacities. See id. The trial court’s judgment is affirmed in regard to the dismissal of Presiado’s claims against Massey and Presiado’s claims against Sheffield, Briseno, Neil, and Neal for retaliation and theft in their official capacities; however, the judgment is reversed and remanded as to Presiado’s theft claims against Sheffield, Briseno, Neil, and Neal in their individual capacities.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.