Arthur Powell v. Texas Department of Criminal Justice - Correctional Institutions Division ( 2008 )

NUMBER 13-06-192-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARTHUR POWELL, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE -

CORRECTIONAL INSTITUTIONS DIVISION, ET AL., Appellees.

On appeal from the 343rd District Court

of Bee County, Texas

DISSENTING OPINION

Before Chief Justice Valdez, Justices Benavides, and Vela Dissenting Opinion by Justice Vela

I write separately to dissent from that portion of the majority's opinion holding that sovereign immunity was either waived or not implicated as to TDCJ. The majority holds that TDCJ's answer stating that the "suit is frivolous and without merit and that as such, they are entitled to recover from Plaintiff the amount of any attorneys fees and costs incurred in defending this suit" waived immunity. As support for its holding, the majority cites several cases setting forth a general rule that counterclaims for attorneys' fees are claims for affirmative relief.

I believe the majority's holding is inconsistent with the Texas Supreme Court's decision in Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006), in which the court recognized a limited waiver of immunity arising from a governmental agency's participation in litigation. In Reata, the governmental entity joined in the litigation, asserting a claim for monetary relief. Id. at 376. The trial court, in Reata, acquired jurisdiction over claims against the city which were connected to, germane to or properly defensive to the matters on which the city based its affirmative claim for damages. Id. at 377. Clearly, in this case, TDCJ's pleading is merely one of avoidance -- it is strictly defensive in nature. TDCJ sought to be dismissed from the action based on immunity and claimed Powell's pleadings were frivolous.

The scenario here is more akin to our sister courts' opinions in DeMino v. Sheridan, 176 S.W.3d 359 (Tex. App.-Houston [1st Dist.] 2004, no pet.), (disagreed with on other grounds, Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007)); Bexar Metropolitan Water Dist. v. Education & Economic Development Joint Venture, 220 S.W.3d 25, 32 (Tex. App.-San Antonio 2006, pet. filed); see also Harris County Toll Rd. Auth. v. Sw. Bell Telephone L.P., No. 01-06-00668-CV, 2006 WL 2641204 (Tex. App.-Houston [1st Dist.] September 14, 2006, pet. granted). In DeMino, the plaintiff brought suit against Sheridan, the University of Houston Provost. The record, in DeMino, reflected that Sheridan did not file a separate pleading suggesting a counterclaim. Rather, his general prayer for relief asked for attorneys' fees and costs of court. Id. at 372. The DeMino court stated that the issue of whether an answer pleads a counterclaim or is defensive is whether a defendant could have maintained an independent suit. If the suit could not have been maintained, it is defensive. Id. The court concluded that Sheridan did not invoke the jurisdiction of the trial court by his general prayer. Id.

Likewise, in Harris County Toll Road, the court held that the governmental entity had not initiated the suit, but merely prayed for attorneys' fees in its prayer for relief. Because the prayer could not be characterized as an offset within the meaning of Reata, Harris County's immunity was not waived. See id. at *12. Finally, in Bexar Metropolitan Water District, the San Antonio court of appeals opined that a general pleading for costs is not the type of affirmative claim contemplated in Reata. Id. at 32. See contra Dequire v. City of Dallas, 192 S.W.3d 663, 666 (Tex. App.-Dallas 2006, pet. filed) (holding that a defendant's counterclaim for attorneys' fees, asserted in response to a plaintiff's declaratory judgment action, is a claim for relief).

I agree with TDCJ that Powell did not assert a declaratory judgment against it, and disagree with the majority's statement that the pleadings sought only declaratory relief. I believe that Powell clearly requested compensatory damages, at least against Martinez. Powell's petition states: "Defendant Martinez violated the plaintiff's constitutional rights under the 14th Amendment . . . for which the plaintiff seeks compensatory damages for violation of his constitutional rights." The majority states that the relief Powell seeks from TDJC is not entirely clear, but because TDCJ did not specially except to Powell's petition, the trial court had jurisdiction. In other words, the majority assumes jurisdiction because the pleadings are unclear.

The petition specifically states that Powell seeks a declaratory judgment against Martinez, one of the individual defendants he sued. I see nothing stated in the pleadings suggesting that Powell is seeking declaratory relief against TDCJ. The allegation against TDCJ appears to be that the "administrative agency or body's decision was not based upon sufficient evidence to reasonably support it's [sic] action in upholding a finding of guilt in the prison disciplinary proceedings . . ." A defendant should not be required to file special exceptions suggesting to a plaintiff possible causes of action. See Crabtree v. Ray Richey & Co., 682 S.W.2d 727, 728 (Tex. App.-Fort Worth 1985, no writ). Similarly, TDCJ filed a plea to the jurisdiction in response to Powell's pleaded claim against it. It was not incumbent upon TDCJ to also inquire, by way of special exception, whether or not Powell was seeking declaratory relief against it as well as Martinez. The plaintiff has the burden to plead facts affirmatively demonstrating the court's jurisdiction. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Even under a liberal reading of the pleadings, I do not believe that Powell pled facts demonstrating the trial court's jurisdiction.

The majority also states that sovereign immunity was not implicated because Powell sought only declaratory relief against TDCJ. Powell's contention against TDCJ is that the administrative decision purportedly made by TDCJ, was not based on sufficient evidence. The Uniform Declaratory Judgment Act, however, is remedial in nature, designed to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997). A declaratory judgment is only appropriate if there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). The Act is a procedural device for deciding cases already within a court's jurisdiction. Martin v. Texas Bd. of Crim. Justice, 60 S.W.3d 226, 229 (Tex. App.-Corpus Christi 2001, no pet.). In Martin, the plaintiff argued that the declaratory judgment act conferred jurisdiction to declare the unconstitutionality of the law removing his good time credits and depriving him of liberty interests. Id. at 229. This court held that a district court has no constitutional or statutory jurisdiction to exercise supervisory control over prison officials. Id. at 230. Here, Powell does not want rights declared. Rather, he wants TDCJ's decision to be overruled.

While the majority, in essence, concludes that the mere mention of the words "declaratory judgment" in a petition fails to implicate and/or waives the immunity of TDCJ, for the reasons stated above, I disagree. Accordingly, I would affirm TDCJ's plea to the jurisdiction.

ROSE VELA

Justice

Dissenting Opinion delivered and

filed this 7th day of February, 2008.