Kirk Wayne McBride, Sr. v. Director's Review Committee and Mail Systems Coordinator's Panel ( 2011 )

NUMBER 13-09-00521-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KIRK WAYNE McBRIDE, SR., Appellant,
v.
DIRECTOR’S REVIEW COMMITTEE AND
MAIL SYSTEMS COORDINATOR’S PANEL, Appellees.
On appeal from the 156th District Court
of Bee County, Texas
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Wittig1
Memorandum Opinion by Justice Wittig
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Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. §
74.003 (Vernon 2005).
Appellant, Kirk Wayne McBride, Sr., pro se, challenges the trial court’s dismissal
with prejudice of his claims against two committees of the Texas Department of Criminal
Justice. In his appeal, he claims that appellees, Director’s Review Committee and Mail
Systems Coordinator’s Panel, (“committees”) did not file a verified pleading challenging
their capacity to be sued; that there was no evidence appellees lacked capacity; that
McBride should have been allowed to cure any pleading defects; that sovereign
immunity did not pertain; and finally, that the trial court erred by failing to clarify its order
of dismissal. We affirm.
I. BACKGROUND
Appellant previously was afforded a jury trial on essentially the same claims he
now makes against appellees. Before the trial court severed the present case,
appellant had also sued Texas Department of Criminal Justice (“TDCJ”) for violation of
the Deceptive Trade Practices Act (“DTPA”); Thomas J. Prasifka, Denise Menchaca, and
William Stephens for (1) the common law tort of conversion, (2) deprivation of personal
property under the Fourteenth Amendment, and (3) assumpsit; and K. M. Weseman for
denial of adequate medical treatment under the Eighth Amendment. The trial court
dismissed McBride's claims against the TDCJ and entered an instructed verdict in favor
of Weseman. The jury ruled in favor of appellees, Prasifka, Menchaca, and Stephens.
We affirmed the trial court’s judgment in Kirk Wayne McBride, Sr. v. Texas Department
of Criminal Justice, et al., Nos. 13-05-00391-CV & 13-05-00392-CV, 2008 Tex. App.
LEXIS 1471, at *2 (Tex. App.–Corpus Christi Feb. 28, 2008, pet. denied), (mem. op.).
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Appellant also separately appealed a default judgment he obtained against
appellees. On a restricted cross-appeal, appellees claimed service of process upon
them was defective and that they could not be sued as separate legal entities. Because
that record did not demonstrate strict compliance with the rules governing service of
process, we reversed the judgment and remanded for further proceedings to include the
capacity issue. Kirk Wayne McBride, Sr. v. Mail System Coordinator’s Panel and
Director’s Review Committee, No. 13-05-560, 2008 LEXIS 3906 (Tex. App.–Corpus
Christi, May 22, 2008, pet. denied) (mem. op.).
While incarcerated at the McConnell Unit of the TDCJ, McBride purchased a word
processor from a vendor outside the prison. The mail room provided McBride with a
returned package form explaining that a package had not been approved and had been
returned to the sender. Later, McBride was notified on a TDCJ correspondence
(contraband) denial form that his package was denied because, among other things, it
was not “approved per offender property policy/warden.” McBride maintained that he
had an implied agreement with Shannon O’Reilly, representative of T. Prasifka, to
purchase a second word processor from Will Repair Service in March 2004. We
surmise that McBride believes he had some type of implied settlement agreement
through O’Reilly that would have allowed his purchase of the word processor.
However, as we noted above, McBride’s claims against Prasifka were denied in an
earlier jury trial and that judgment was affirmed on appeal.
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II. STANDARD OF REVIEW
We review the trial court's dismissal of an inmate's claims under chapter 14 for
an abuse of discretion. Retzlaff v. Tex. Dep't of Crim. Justice, 94 S.W.3d 650, 654
(Tex. App.–Houston [14th Dist.] 2002, pet. denied); Hickson v. Moya, 926 S.W.2d 397,
398-99 (Tex. App.–Waco 1996, no writ). In reviewing a trial court’s decision under an
abuse of discretion standard, we must determine whether the trial court acted without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). The exercise of discretion is within the sole
province of the trial court, and an appellate court may not substitute its discretion for that
of the trial judge. Johnson v. Fourth Court of Appeals., 700 S.W.2d 916, 918 (Tex.
1985). The judgment of the trial court will be affirmed if that judgment can be upheld on
any reasonable theory supported by the evidence. Ex parte E.E.H., 869 S.W.2d 496,
497-98 (Tex. App.–Houston [1st Dist.] 1993, writ denied); Harris County Dist. Attorney's
Office v. Burns, 825 S.W.2d 198, 200 (Tex. App.–Houston [14th Dist.] 1992, writ denied).
We consider only the evidence most favorable to the judgment, and if there is some
evidence to support the judgment, we will affirm. State v. Knight, 813 S.W.2d 210, 211
(Tex. App.–Houston [14th Dist.] 1991, no writ).
III. DISCUSSION
In his first issue, McBride argues that appellees, the two committees, failed to
verify by affidavit their lack of capacity, citing a criminal case and a United States
Supreme Court case. We acknowledge McBride’s argument as true that under rule 93,
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a verified denial is required to raise a defense that a defendant does not have legal
capacity to be sued. See TEX. R. CIV. P. 93(1). McBride contends the committees’
affidavit was not signed or dated. Our review of the record indicates that Kimberly
Fuchs, Assistant Attorney General, signed the verified denial. The pleading is dated by
the notice of electronic filing, July 15, 2009, by certificate of service dated July 15, 2009,
and by the District Clerk’s file mark of July 15, 2009. The verification by a notary public
indicates Fuchs personally appeared, was known to the notary, was administered an
oath, that the facts stated were within her personal knowledge, and that Fuchs on her
oath stated such facts were true and correct.
An affidavit is a “statement in writing of a fact or facts signed by the party making
it, sworn to before an officer authorized to administer oaths, and officially certified to by
the officer under his seal of office.” Perkins v. Crittenden, 462 S.W.2d 565, 567-68
(Tex. 1970). The jurat of an affidavit is a “certificate by a competent officer that the
writing was sworn to by the person who signed it.” Hill v. Floating Decks of Am., 590
S.W.2d 723, 729 (Tex. Civ. App.–San Antonio 1979, no writ). However, no particular
terminology is required to render a document an affidavit because it is the substance and
not the form of an affidavit that is significant. Acme Brick, Div. of Justin Indus. v.
Temple Assoc., 816 S.W.2d 440, 441 (Tex. App.–Waco 1991, writ denied); Norcross v.
Conoco, 720 S.W.2d 627, 630 (Tex. App.–San Antonio 1986, no writ).
We hold that the committees’ affidavit is substantially compliant with applicable
law and was sufficient to raise the issue of capacity to be sued. See Acme Brick, 816
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S.W.2d at 441.
A. SOVEREIGN IMMUNITY
Included in appellees’ motion to dismiss was the defense of sovereign immunity.
Generally, sovereign immunity protects the state against lawsuits for money damages,
unless the state has consented to be sued. Tex. Dep't of Crim. Justice v. McBride, 317
S.W.3d 731, 732 (Tex. 2010); see Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 655 (Tex. 2008); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
224 (Tex. 2004). Governmental immunity operates like sovereign immunity to afford
similar protection to subdivisions of the state, including counties, cities, and school
districts, unless that immunity has been waived. Harris County v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283
(Tex. 1996). The doctrine of sovereign immunity insulates agency action from judicial
review unless a statute provides for such review, the action violates constitutional
procedural due process, or the constitution waives the state's immunity from suit. Sw.
Airlines v. Tex. High-Speed Rail Auth., 867 S.W.2d 154, 157 (Tex. App.–Austin 1993,
writ denied). A suit against an agency of the State is considered to be a suit against the
State. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Therefore, a state
agency, such as TDCJ, is entitled to the same sovereign immunity as that enjoyed by the
State of Texas. See Thomas v. Brown, 927 S.W.2d 122, 127-28 (Tex App.–Houston
[14th Dist.] 1996, writ denied) (holding that a suit against a TDCJ employee was barred
by sovereign immunity).
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The Texas Tort Claims Act (“TTCA”) establishes a limited waiver of this immunity
and authorizes suits to be brought against governmental units in certain narrowly-defined
circumstances. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); see
Dallas Cty. MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Under the TTCA,
governmental immunity is waived for property damage caused by the negligence of a
governmental employee acting in the course and scope of his employment if the damage
arises from the operation or use of a motor-driven vehicle or motor-driven equipment.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (Vernon 2005). There is no
allegation by McBride that would bring him within the purview of the TTCA.
McBride also argues sovereign immunity does not preclude a claim alleging
that the State deprived the plaintiff of property without due process of law. He cites
Martin v. State Bd. of Crim. Justice, 60 S.W.3d 226, 230 (Tex. App.–Corpus Christi 2001,
no pet.), which in turn cites Brazosport Sav. & Loan Asso. v. American Sav. & Loan
Asso., 342 S.W.2d 747, 750 (Tex. 1961) (holding that aggrieved persons can assert
direct claims for equitable relief against governmental entities for violations of the
provisions of the Texas Bill of Rights). In Martin, the plaintiff sought to have this Court
declare that he had a liberty interest in obtaining parole and a property interest in the
return of his forfeited good time credits. Martin, 60 S.W.3d at 230. We held that both
of these issues have previously been decided in the negative. Id. Texas law does not
create a liberty interest in parole or good time credit that is protected by due process.
Id. In Allison, the Fifth Circuit noted that a challenge to parole review procedures which
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affect the duration of confinement “might have implicated the narrow range of prisoner
liberty interests remaining after Sandin” but for the fact that Texas law does not create a
liberty interest in parole that is protected by the due process clause. Allison v. Kyle, 66
F.3rd. 71, 74 (5th Cir. 1995). “It follows that because [the prisoner] has no liberty
interest in obtaining parole in Texas, he cannot complain of the constitutionality of
procedural devices attendant to parole decisions.” Id. McBride provides no authority,
state or federal, indicating that he had a liberty interest in procuring a certain word
processor from a particular third party vendor. Neither do we find any such authority.
Appellees argue, with some merit, that McBride’s claim is essentially one for
money damages. This is so because the word processor in question has long since
(2001-2004) been returned, destroyed, or is no longer in existence. Thus, the only
available remedy would be money damages. Whether this is true or not, the courts
have long recognized that the legislature has the sole province to waive or abrogate
sovereign immunity. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d
849, 854 (Tex. 2002). Legislative consent to sue the State must be expressed in "clear
and unambiguous language." Id. (citing TEX. GOV'T CODE ANN. § 311.034 (Vernon
2002); Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.
1994)). We find no express waiver of immunity, nor any constitutionally protected
liberty, that would waive or abrogate sovereign immunity. We conclude that the trial
court could have properly dismissed McBride’s claims under sovereign immunity.
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B. INMATE LITIGATION
Appellees’ motion to dismiss was also based upon chapter 14 of the civil
remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (Vernon 2008).
Inmate litigation (except suits brought under the family code) in which the inmate files an
affidavit or unsworn declaration of inability to pay costs is governed by special procedural
rules set out in chapter fourteen of the civil practice and remedies code. Id. The
legislature enacted this statute to control the flood of frivolous lawsuits being filed in
Texas courts by prison inmates; these suits consume many valuable judicial resources
with few offsetting benefits. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.–Waco
1996, no writ). The rules set out in chapter 14 may not be modified or repealed by the
regular rules of civil procedure. TEX. CIV. PRAC. & REM. CODE ANN. § 14.014. The trial
court has broad discretion to dismiss a lawsuit brought under chapter 14 as frivolous or
malicious. Id. § 14.003(a)(2); Jackson v. Tex. Dep't of Crim. Justice, 28 S.W.3d 811,
812-813 (Tex. App.–Corpus Christi 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d
720, 722 (Tex. App.–Houston [1st Dist.] 1998, no pet.). In determining whether a claim
is frivolous or malicious, the trial 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b).
The trial court previously dismissed McBride’s claim against the TDCJ under
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chapter 14, and we affirmed the trial court’s action. See TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003(a)(2). McBride has already been afforded a jury trial on the same facts
and virtually the same claims. In one of our prior opinions, we already noted that
McBride was required to follow proper procedure in order to purchase property from an
outside vendor. See McBride, 2008 Tex. App. LEXIS 1471, at *8. The evidence
supporting the adverse jury verdict showed McBride failed to file an I-60 request form
signed by the warden. Id. The warden and Officer Menchaca testified that no
permission was granted to McBride. Id. McBride himself testified he did not comply
with the requirements of the I-60 request. Id. McBride’s claims have little or no
realistic chance of success, and the claim is substantially similar to a previous claim filed
by the inmate arising from the same operative facts. We therefore hold that the trial
court did not abuse its discretion by dismissing the claims under chapter 14. See TEX.
CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2).
IV. TIME TO CURE DEFECTS
McBride also argues that the trial court abused its discretion by dismissing his
complaint with prejudice without affording him an opportunity to amend his pleadings.
Chapter 14 empowers a trial court to dismiss an action as frivolous or malicious either
before or after service of process. See id. § 14.003(a). Accordingly, the trial court is
under no duty to suggest that the appellant amend his pleadings. See Kendrick v.
Lynaugh, 804 S.W.2d 153, 156 (Tex. App.–Houston [14th Dist.] 1990, no writ) (applying
the identical language of civil practice and remedies code section 13.001(c)).
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Even had McBride been allowed to amend his petition, presumably he would
have added TDCJ. TDCJ was previously dismissed from this litigation by the trial court,
and that judgment was affirmed by this court. Thus, a claim against TDCJ would have
been barred by res judicata. See Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359,
368 (Tex. App.–Fort Worth 2003, pet. denied). Res judicata is normally either claim
preclusion (res judicata) or issue preclusion (collateral estoppel). Id. Like claim
preclusion, res judicata prevents the relitigation of a claim or cause of action that has
been finally adjudicated, as well as related matters that, with the use of diligence, should
have been adjudicated. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 627 (Tex.
1992). Res judicata includes three elements: (1) prior final judgment on the merits by
a court of competent jurisdiction; (2) identity of parties or those in privity with them; and
(3) a second action based on the same claims that were raised or could have been
raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.
1996). All three elements are present here. Thus, in context, had McBride been able
to amend, such amendment would have been subject to the obvious defense of res
judicata. We overrule this issue.
V. CLARIFICATION
Without citation to authority, McBride claims the trial court erred by failing to clarify
the grounds for its dismissal with prejudice. However, we have upheld at least two of
the possible grounds for dismissal. If the judgment of the trial court can be upheld on
any grounds, we are to affirm its judgment. Burns, 825 S.W.2d at 200. Thus, the
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error, if any, by the trial court is harmless. See TEX. R. APP. P. 44.1(a)(1). We overrule
this issue.
VI. CONCLUSION
We conclude that the trial court could have properly dismissed McBride’s claims
under chapter 14 or by application of the doctrine of sovereign immunity. We need not
address the proof, or lack thereof, concerning the capacity to be sued because it is not
necessary to our final disposition. See TEX. R. APP. P. 47.1. The judgment of the trial
court is affirmed.
DON WITTIG,
Justice
Delivered and filed the
28th day of April, 2011.
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