COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00343-CV

CURTIS R. FRANCIS APPELLANT

V.

DEBORAH FORD AND DANNY 

HORTON

APPELLEES

----------

FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

----------

MEMORANDUM OPINION1

----------

Appellant Curtis R. Francis appeals a jury‘s take-nothing verdict for 

appellees Deborah Ford and Danny Horton. In three points, appellant asserts 

that the verdict is against the great weight and preponderance of the evidence, 

that the trial court abused its discretion by refusing to submit his proposed jury 

charge, and that the trial court violated his due process rights. We affirm.

 

1See Tex. R. App. P. 47.4.
2

Background

This is the fourth appeal in this case to our court. See Francis v. Horton, 

No. 02-08-00328-CV, 2009 WL 579266, at *1 (Tex. App.—Fort Worth March 5, 

2009, no pet.) (mem. op.); Francis v. TDCJ-CID, No. 02-06-00352-CV, 2007 WL 

2460270, at *1 (Tex. App.—Fort Worth Aug. 31, 2007, no pet.) (mem. op.); 

Francis v. TDCJ-CID, 188 S.W.3d 799, 800 (Tex. App.—Fort Worth 2006, no 

pet.). Because the factual and procedural history of the case is well detailed in 

our previous opinions, we will only briefly summarize the facts relevant to this 

appeal.

Appellant, a TDCJ inmate, filed his pro se original petition in 2004, 

claiming, among other things, that Ford, the law library supervisor, had 

negligently denied his requests for legal visits with another inmate and 

negligently refused to timely provide him with books from the law library. 

Appellant amended his petition several times. The trial court dismissed some of 

his claims and granted summary judgment on others; appellant also abandoned 

some of his originally pled claims. The surviving claims that went to trial were 

appellant‘s claims that Ford was negligent and violated his constitutional rights by 

denying legal visits and by refusing to timely provide him with materials from the 

law library.2 Appellant named Horton as a defendant under the theory of 

respondeat superior because he was one of Ford‘s supervisors. The jury found 

 

2Appellant sought monetary damages for his negligence claims and a 

declaratory judgment for his constitutional claims.
3

that appellant was one hundred percent negligent, that appellees were zero 

percent negligent, that appellees did not violate appellant‘s rights under article 1, 

sections 13 and 19 of the Texas Constitution, and that appellees acted in good 

faith and within the course and scope of their authority in performing 

discretionary duties related to appellant‘s claims. Appellant appeals from the jury 

verdict against him.

Sufficiency of the Evidence

In his second point, appellant claims that the jury verdict is against the 

great weight and preponderance of the evidence.

Standard of Review

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 

all of the evidence in the record pertinent to that finding, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that the answer should be set aside and 

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) 

(op. on reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Findings of 

fact are the exclusive province of the factfinder. Bellefonte Underwriters Ins. Co. 

v. Brown, 704 S.W.2d 742, 744–45 (Tex. 1986). When the party with the burden 

of proof appeals from a failure to find, the party must show that the failure to find 

is against the great weight and preponderance of the credible evidence. Cropper 

v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see Gonzalez v. 
4

McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006). When conducting 

a factual sufficiency review, a court of appeals must not merely substitute its 

judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 

S.W.3d 757, 761 (Tex. 2003). The trier of fact is the sole judge of the credibility 

of witnesses and the weight to be given to their testimony. Id.

Analysis

At trial, appellant testified that he properly requested but was denied visits 

with another inmate, a jailhouse lawyer who was to help appellant file a small 

claims suit. According to appellant, Ford denied him the visit. Appellant also 

testified that Ford put him on informal book restriction, denying him the materials 

he needed to file his suit and also sending him inadequate printouts of case law 

rather than the hardback books he requested. Appellant stated that he had to file 

grievances against Ford to finally get the materials he needed. Appellant 

claimed that because Ford withheld his visit and library materials, he filed his suit 

in the wrong court, which caused it to be dismissed. He also claimed that he 

could not meet deadlines in other suits because he could not get the books he 

needed.

Ford testified that she followed all established policies to ensure appellant 

adequate access to the courts. Ford explained that she investigated appellant‘s 

complaints and that the only time he did not receive the materials he requested 

was during a five-day period when his building was on security lockdown for a 

shakedown and security would not allow her officers to enter to deliver legal 
5

materials. She said she did not refuse to bring books to appellant, but rather, 

―was not allowed on the building‖ and ―could not deliver books.‖ According to 

Ford‘s testimony, appellant did not receive hardback books because he was in 

high security and could not attend the law library; the books themselves had to 

be kept in the library so that general population inmates could access them. 

Horton confirmed both the dates of the shakedown and the policies and security 

reasons that prohibited book deliveries during a shakedown.

With regard to appellant‘s claim that he was denied visits with another 

inmate, Ford testified that she had approved the visit, but security did not 

complete it because the other inmate had been moved to 11 Building, which was 

reserved for inmates in solitary confinement or prehearing detention. She said 

the failure to complete the visit was not her decision to make: ―I did not deny the 

legal visit. The legal visit was approved and security on [appellant‘s] building felt 

like there was justifiable grounds upon which to make the determination denying 

it at that time because that offender had been moved to 11 Building.‖

The jury was entitled to believe Ford‘s and Horton‘s testimony rather than 

appellant‘s. See id. at 761 (holding that factfinder is sole judge of credibility of 

testimony and weight given to evidence). Based on this evidence, a reasonable 

trier of fact could have found that neither Ford nor Horton acted negligently or 

prevented appellant‘s access to courts. See Hutchison v. Pharris, 158 S.W.3d 

554, 567 (Tex. App.—Fort Worth 2005, no pet.) (holding that jury verdict was not 

against the great weight and preponderance of the evidence when defense 
6

witnesses offered testimony that contradicted the ―heart‖ of appellant‘s claims of 

negligence). We overrule appellant‘s second point.

Refusal to Submit Appellant’s Jury Charge

In his first point, appellant claims the trial court abused its discretion by 

refusing to submit his proposed jury charge.

3

Standard of Review

A trial court must submit to the jury any instructions that are proper and 

necessary to enable the jury to render a verdict. Tex. R. Civ. P. 277. An 

instruction is proper if it might assist the jury in answering the submitted 

questions, correctly states the law, and is supported by the pleadings and 

evidence. Tex. R. Civ. P. 278; Thomas v. Uzoka, 290 S.W.3d 437, 443–44 (Tex. 

App.––Houston [14th Dist.] 2009, pet. denied); Gibbins v. Berlin, 162 S.W.3d 

335, 341 (Tex. App.––Fort Worth 2005, no pet.). However, the jury should not be 

burdened with surplus instructions, even those that accurately state the law. 

Thomas, 290 S.W.3d at 444.

We review a trial court‘s decision to refuse a particular instruction under an 

abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.

 

3Appellees contend appellant failed to preserve error by failing to object to 

their proposed charge. However, appellant‘s complaint is not about appellees‘ 

proposed charge, which the trial court submitted; his complaint is that the trial 

court did not submit additional instructions and questions in his proposed charge. 

Thus, appellant‘s submission of a proposed charge preserved his complaint. 

See Religious of Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 606, 614 

(Tex. 1992).
7

2006). When a trial court refuses to submit a requested instruction on an issue 

raised by the pleadings and evidence, we are to determine whether the 

instruction was reasonably necessary to enable the jury to render a proper 

verdict. Id. If so, the refusal to submit a requested instruction will constitute 

reversible error only if the omission probably caused the rendition of an improper 

judgment. Id.

Analysis

Appellant‘s proposed jury charge contains questions for each element of 

negligence, i.e., for each alleged negligent act there is a separate question as to 

whether Ford owed appellant a duty, breached that duty, and whether that duty 

was a proximate cause of damages to appellant. Rule 277 requires Texas courts 

to use broad form jury charge submissions whenever feasible. Tex. R. Civ. P. 

277; Pack v. Crossroads, Inc., 53 S.W.3d 492, 515 (Tex. App.—Fort Worth 2001, 

pet. denied). The charge the trial court gave the jury defined negligence and 

included duty, breach, and causation in its negligence questions.4 Thus, the trial 

court did not abuse its discretion by refusing to submit appellant‘s proposed 

charge as to negligence because it was not in proper broad form. See Tex. R. 

Civ. P. 277, 278; Mayes v. Stewart, 11 S.W.3d 440, 455 (Tex. App.—Houston 

[14th Dist.] 2000, pet. denied).

 

4

The question the trial court submitted to the jury asked as to Horton and 

Ford each: ―Did Plaintiff Curtis Francis prove by a preponderance of the 

evidence the (1) breach (2) of a legal duty owed to the Plaintiff Curtis Francis (3) 

which proximately caused damage to Plaintiff‘s previously filed lawsuit‖?
8

Appellant also contends that the trial court abused its discretion by refusing 

to include his requested specific questions asking whether Ford harassed and 

retaliated against him. In his ―Plaintiff Amends Second Amended Complaint,‖ 

appellant clarified that he was suing Ford and Horton ―in their personal 

capacit[ies] under common-law negligence and Texas Consitutioln [sic] for 

violating plaintiff‘s rights of access to courts, and for harassment, 

discouragement, and retaliation.‖ He also specifically alleged that

. . . Ford violated his constitutional right to be free from 

repraisal [sic] for filing grievances for utilizing the grievance system 

free from harassment for requesting law books[;]

. . . Ford retaliated against [him] by placing him on law book 

restriction wherein he could not receive any books from the law 

library. Such restriction was not supported by any alleged 

disciplinary infraction[; and]

. . . Ford discouraged him from wanting to continue in doing 

his legal work.

The trial court submitted instructions defining article 1, sections 13 and 19 

of the Texas Constitution and questions asking whether Ford or Horton violated 

appellant‘s rights under either section.5

 

5

The definitions included in the charge were as follows: ―Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel or unusual 

punishment inflicted. All courts shall be open, and every person for an injury 

done him, in his lands, goods, person or reputation, shall have remedy by due 

course of law,‖ Tex. Const. art. I, § 13, and ―No citizen of this State shall be 

deprived of life, liberty, property, privileges or immunities, or in any manner 

disfranchised, except by the due course of the law of the land,‖ Tex. Const. art. I, 

§ 19.
9

To the extent that appellant‘s claims are based on violations of the Texas 

Constitution, the charge given by the trial court specifically addressed whether 

appellant‘s were violated, and the jury answered no. To the extent that 

appellant‘s claims are based on section 1983 of the United States Code, the jury 

found that Ford and Horton proved by a preponderance of the evidence that the 

allegations against them arose from the performance of discretionary duties in 

good faith within the scope of their authority; this finding shields them from 

liability for such claims.

6

42 U.S.C.A. § 1983 (West 2003); see Wilson v. Layne, 

526 U.S. 603, 614, 119 S. Ct. 1692, 1699 (1999); Newman v. Kock, 274 S.W.3d 

697, 705 (Tex. App.––San Antonio 2008, no pet.); McCartney v. May, 50 S.W.3d 

599, 613 (Tex. App.––Amarillo 2001, no pet.) (holding that ―[q]ualified immunity 

against section 1983 claims requires proof of effectively the same elements as 

official immunity under Texas law‖). Accordingly, we conclude and hold that the 

requested instructions on harassment and retaliation were not reasonably 

necessary to enable the jury to reach a proper verdict.

Appellant also contends that the trial court abused its discretion by failing 

to submit his proposed question as to whether Horton was liable for Ford‘s 

actions under a theory of respondeat superior. Although appellant pled 

 

6Appellant does not challenge these findings. He does argue that the trial 

court abused its discretion by failing to submit his proposed definition of bad faith, 

but this argument fails because the charge actually given to the jury correctly 

defined ―good faith‖ for immunity purposes. See Tex. R. Civ. P. 278 (requiring 

that charge be in ―substantially correct wording‖).
10

respondeat superior as a theory of recovery against Horton, he did not bring 

forward any evidence supporting that theory of recovery against Horton. See 

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947–48 (Tex. 1998); see 

also K.T. v. Natalia ISD, No. SA-09-CV-285-XR, 2010 WL 1484709, at *2 (W.D. 

Tex. Apr. 12, 2010) (noting that governmental entity cannot be liable under 

section 1983 under a theory of respondeat superior). Accordingly, the trial court 

did not abuse its discretion by refusing to submit appellant‘s requested instruction 

on respondeat superior. See Shupe, 192 S.W.3d at 579.

We overrule appellant‘s first point.

Due Process Complaint

In his third point, appellant contends the trial court violated his due process 

rights by deliberately ignoring his proposed jury charge. The record reflects that 

the trial court held a jury charge conference. During this conference, both parties 

had the opportunity to present proposed charges and review the opposing side‘s 

proposed charge. When asked about both his charge and the State‘s proposed 

charge, appellant stated, ―[B]asically everything I wanted in the Charge is in this 

Charge. And I don‘t have any objection to you cutting it down. I have cut it down 

once. I have seen it.‖ Appellant also said that he did not object to appellees‘ 

proposed charge. Appellees objected to appellant‘s proposed jury charge, 

claiming that his charge raised issues not properly before the court based on the 

pleadings.
11

The trial court allowed both parties the opportunity to be heard on the issue 

before it ruled that it would submit appellees‘ proposed charge. Appellant had 

the opportunity to submit his own proposed charge and to be fully heard on any 

objections to appellees‘ proposed charge. Accordingly, we conclude and hold 

that the trial court did not ignore appellant‘s proposed charge and, thus, did not 

deprive appellant of any due process right in the jury charge submission process. 

See In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (―The phrase  ̳due process,‘

although incapable of precise definition, expresses the requirement of 

fundamental fairness.‖) (citing Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24, 

101 S. Ct. 2153, 2158 (1981)), cert. denied, 541 U.S. 945 (2004); see Mathews 

v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976) (identifying factors to 

be balanced to determine if person has received due process under Fourteenth 

Amendment). We overrule appellant‘s third point.

Conclusion

Having overruled appellant‘s points, we affirm the trial court‘s judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 11, 2011