Bobby Oxford v. Lane Pinckney

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00109-CV
Bobby Oxford, Appellant
v.
Lane Pinckney, Appellee
FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NO. 14,991, HONORABLE BEN WOODWARD, JUDGE PRESIDING
MEMORANDUM OPINION
Appellee Bobby Oxford, an inmate in the Texas Department of Criminal Justice’s
Institutional Division, appeals pro se from the trial court’s order dismissing his claims against
appellee Lane Pinckney. The trial court granted Pinckney’s motion to dismiss brought under section
101.106(f) of the Texas Tort Claims Act (TCA). See Tex. Civ. Prac. & Rem. Code § 101.106(f).
For the reasons that follow, we affirm the trial court’s order.
BACKGROUND
In October 2011, Oxford sued Pinckney, who is a game warden for the Texas
Department of Parks and Wildlife (the Department). Oxford sought damages for property loss and
mental anguish based on an incident that took place at his residence. Oxford alleged “reckless
conduct” by Pinckney when Pinckney fired his gun as a warning shot to Oxford’s dog.
Pinckney filed an answer, asserting the defense of official immunity and moving to
dismiss under section 101.106(f). Pinckney also filed a separate motion to dismiss under section
101.106(f) on July 16, 2012. Section 101.106(f) states as follows:
If 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.
Id. Pinckney supported his motion with an affidavit. In the affidavit, he averred that he was
employed by the Department as a “State Game Warden” and that he “was in the course and scope
of [his] employment” with the Department when he “fired [his] state-owned handgun” at Oxford’s
residence. He averred that he “was at the Oxford residence to pick up Joshua Booth and get him to
a youth hunt at the Zac Gray ranch, as part of [his] outreach efforts as a State Game Warden.”
Oxford filed a “Motion for Objection on Lane Pinckney’s Motion to Dismiss.”
Oxford urged that Pinckney should not be dismissed but held liable for damages for his negligent
conduct. In November 2012, Oxford also filed a motion for leave to file an amended complaint to
add the Department as a defendant and an amended petition that included the Department in the
style. He, however, did not contest and did not present any evidence to controvert Pinckney’s
evidence that Pinckney was acting in the course and scope of his employment with the Department
at the time of the incident. Oxford’s amended petition also retained Pinckney as a defendant.
2
After a hearing in which Oxford participated by telephone, the trial court granted
Pinckney’s motion to dismiss. This appeal followed.1
ANALYSIS
Oxford raises six issues on appeal. He contends that the trial court erred: (i) “in not
reviewing the facts of said case,” (ii) “in not reviewing said summary judgment,” (iii) “in not
noticing the facts of evidence,” (iv) “by prejudiced and bias by allowing a one sided case ‘all
Defendants [sic],’” (v) “in not ruling on any motions plaintiff filed,” and (vi) “in violating plaintiff’s
state and constitutional rights.” Oxford’s issues generally focus on his version of what happened on
the day of the incident.2
Oxford, however, does not dispute that Pinckney was acting within the course and
scope of his employment with the Department at the time of the incident and that Oxford’s claims
“could have been brought” under the TCA against the Department. See Tex. Civ. Prac. & Rem.
Code § 101.106(f); see also id. § 101.001(3)(A) (defining “governmental unit” to include state
agencies); Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011) (“[A]ll [common-law] tort
theories alleged against a governmental unit . . . are assumed to be ‘under [the Tort Claims
1
Although Oxford’s notice of appeal names “Parks and Wildlife et al” in the style of the
notice, the record shows that the Department was not a party, and Oxford appeals from the trial
court’s order granting Pinckney’s motion to dismiss.
2
In his fifth issue, he complains that the trial court did not rule on his motions, but the record
shows that the trial court ruled on motions that were properly set for hearing during the pendency
of the case. As to his sixth issue, Oxford contends that the trial court violated his constitutional
rights, but he does not provide any additional argument or authority as to this issue. See Tex. R.
App. P. 38.1(i) (requiring brief to contain appropriate citations to the record and authorities).
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Act]’ for purposes of section 101.106.” (quoting Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653, 659 (Tex. 2008)).
The dispositive issue then is whether Oxford complied with section 101.106(f) to
avoid dismissal. See Tex. Civ. Prac. & Rem. Code § 101.106(f). Oxford was required to file
“amended pleadings dismissing [Pinckney] and naming the [Department] as defendant on or before
the 30th day after [July 16, 2012,] the date the motion [was] filed.” See id. We conclude that he
failed to do so. Although Oxford states in his briefing that he filed an amended petition “dismissing
the employee and naming the governmental unit as defendant,” the record shows only that Oxford
filed a motion for leave to file an amended petition and an amended petition several months after the
30-day deadline had expired, and the motion for leave and the amended petition did not seek to
dismiss Pinckney but to add the Department as an additional defendant.3
Although we view a pro se inmate’s pleadings “with liberality and patience,” see
Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing,
among other authority, Hughes v. Rowe, 449 U.S. 5, 9–10 (1986), for the principle that courts
generally do not hold pro se inmates to “the stringent standards applied to formal pleadings drafted
by attorneys”); Brewer v. Collins, 857 S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.] 1993, no
writ) (viewing pro se inmate petition “with liberality and patience”), pro se litigants must comply
with applicable laws and rules of procedure. See Amir-Sharif v. Mason, 243 S.W.3d 854, 856 (Tex.
App.—Dallas 2008, no pet.) (pro se litigants “must comply with applicable laws and rules of
3
In his motion for leave to file an amended complaint, Oxford sought to change the
“heading” to “Parks and Wildlife, Lane Pinckney, individually and in their official capacities.”
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procedure”). Because Oxford failed to comply with section 101.106(f), we conclude that the trial
court did not err by granting Pinckney’s motion to dismiss.
Further, to the extent Oxford raises new issues in his reply brief or his issues extend
beyond a challenge to the trial court’s order of dismissal, we need not address those issues. See Tex.
R. App. P. 47.1 (requiring court of appeals to “hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the appeal”);
see also id. R. 38.1, 38.3; Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d 328,
334 (Tex. App.—Dallas 2008, no pet.) (“a party may not present arguments for the first time in its
reply brief”); Yazdchi v. Bank One, Tex., 177 S.W.3d 399, 404 n.18 (Tex. App.—Houston [1st Dist.]
2005, pet. denied) (declining to consider arguments made for first time in reply brief).4
CONCLUSION
For these reasons, we overrule Oxford’s issues and affirm the trial court’s order
granting Pinckney’s motion to dismiss.
4
We also note that Oxford fails to make appropriate citations to the record or authorities to
support his issues. See Tex. R. App. P. 38.1(i) (requiring brief to contain appropriate citations to the
record and authorities); Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284–85
(Tex. 1994) (holding appellate courts have discretion to deem issues waived due to inadequate
briefing); Winters v. Winters, No. 03-09-00004-CV, 2010 Tex. App. LEXIS 6533, at *11–12
(Tex. App.—Austin Aug. 13, 2010, no pet.) (mem. op.) (concluding issue waived because not
adequately briefed).
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__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Rose, and Goodwin
Affirmed
Filed: February 25, 2014
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