IN THE

TENTH COURT OF APPEALS

No. 10-10-00005-CV

BARRY WION,

Appellant

v.

JANIE COCKRELL, ANN BYROM,

J. MISSILDINE, A.R. MASSINGIL, AND

KELLI WARD,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court No. COT-02-34470

MEMORANDUM OPINION

Barry Wion, a prison inmate, sued several prison employees,1 Ann Byrom, J. 

Missildine, A.R. Massingil, and Kelli Ward, (the TDCJ employees) for damages 

stemming from a disciplinary procedure regarding the damage of an overdue library 

book checked out to Wion. This suit was originally filed in 2002. The trial court 

 

1

Janie Cockrell was also sued but the final order indicates that she had been dismissed previously from 

the suit. Wion does not challenge her dismissal from the suit.
Wion v. State Page 2

rendered an order and final judgment granting the TDCJ employees’ motion to dismiss 

and motion for summary judgment. Wion appeals, and we affirm.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In his first issue, Wion contends that the trial court erred in refusing to issue 

findings of fact and conclusions of law in the underlying case. The underlying case was 

disposed of by summary judgment. A party is not entitled to findings of fact and 

conclusions of law following summary judgment. Ikb Indus. v. Pro-Line Corp., 938 

S.W.2d 440, 442 (Tex. 1997). Accordingly, the trial court did not err in refusing to issue 

findings of fact and conclusions of law. Wion’s first issue is overruled.

FINAL ORDER

In his second issue, Wion argues the trial court abused its discretion or otherwise 

erred when it issued its order and final judgment. Under this issue, Wion includes 

eight sub-points. 

Summary Judgment Standard of Review

In its “Order and Final Judgment” the trial court granted what it called the TDCJ 

employees’ “Second Amended Motion to Dismiss and Motion for Summary 

Judgment.”2 Wion’s suit was dismissed with prejudice as frivolous, and the TDCJ 

employees were granted judgment as a matter of law.

We review a trial court's decision to grant or to deny a motion for summary 

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 

 

2 The document that the TDCJ employees filed was titled as a second amended motion for summary 

judgment only. However, upon examining the motion, we find that the employees also asked for a 

dismissal.
Wion v. State Page 3

184, 192, 199 (Tex. 2007). Under the traditional summary judgment standard, the 

movant has the burden to show that no genuine issues of material fact exist and that it 

is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. 

Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed 

material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and every reasonable inference must be indulged in favor 

of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49.

§ 1983 Claims

In his first amended original petition, Wion alleges many claims under 42 U.S.C. 

§ 1983. Section 1983 provides as follows:

"Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the United States or other 

person within the jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws, shall be 

liable to the party injured in an action at law, suit in equity, or other 

proper proceeding for redress. . . . " 

42 U.S.C. § 1983 (emphasis added). Neither a State nor its officials acting in their official 

capacities are “persons” under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 

109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 

835 (Tex. 2007). 

Qualified Immunity

Wion contends that the trial court erred when it found he failed to state material 

facts that would overcome the TDCJ employees’ qualified immunity defense. Qualified 

immunity cloaks a government agent from personal liability for discretionary acts 
Wion v. State Page 4

which do not violate well-established law. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 

2727, 73 L. Ed. 2d 396 (1982); Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990). 

Whether an official protected by qualified immunity may be held personally liable for 

an allegedly unlawful official action generally turns on the "objective legal 

reasonableness" of the action assessed in light of the legal rules that were "clearly 

established" at the time it was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987). No 

longer is a subjective test of good faith, i.e. that the official acted with subjective malice, 

used in determining whether an official is entitled to qualified immunity. Saldana v. 

Garza, 684 F.2d 1159, 1164 n. 15 (5th Cir. 1982). The contours of the right alleged to have 

been violated must be sufficiently clear that a reasonable official would understand that 

what he is doing violates that right. Id. at 640.

Byrom was the librarian who initiated charges against Wion when he failed to 

timely return a book which, when returned, was damaged. Missildine was the 

disciplinary officer who held the disciplinary hearing, found Wion guilty, and assessed 

$19.95 in damages against Wion. Massingil was the assistant warden who denied 

Wion’s Step 1 grievance. Kelli Ward was the administrator who denied Wion’s Step 2 

grievance. She also then reversed Missildine’s decision, finding that the Unit failed to 

show that Wion was responsible for the damage to the book, ordered Wion’s 

disciplinary report deleted, and ordered the money damage amount credited back to 

Wion’s inmate account. 

Wion alleged in his amended petition that Ann Byrom knowingly and 

intentionally initiated a false and unsupportable disciplinary action against Wion. He 
Wion v. State Page 5

claims that J. Missildine knowingly and intentionally, after a hearing, adjudicated Wion 

guilty of the disciplinary charge when he knew or should have known the charge was 

false and ordered the forfeiture of $19.95 from Wion. Wion further alleges that A.R. 

Massingil knowingly and intentionally aided and abetted Byrom and Missildine by 

upholding their actions knowing the actions were unlawful. Wion alleges that Kelli 

Ward knowingly and intentionally aided and abetted Byrom and Missildine by 

upholding and supporting their unlawful actions. 

There is nothing in the evidentiary record to show, and nothing beyond Wion’s 

boldest and completely unsupported conclusory allegations suggest, that the TDCJ 

employees did anything that a reasonable official would understand to be a violation of 

Wion’s rights. The actions taken by all were objectively reasonable. The system 

worked for Wion. Simply because the decision was ultimately reversed does not mean 

the TDCJ employees were not entitled to qualified immunity for actions performed in 

the routine course of their jobs. Thus, the trial court did not err in finding Wion did not 

state material facts that would overcome the TDCJ employees’ defense of qualified 

immunity. 

The granting of the summary judgment as to Wion’s § 1983 claims on this 

ground is affirmed.

State Law Claims

Wion further asserts that the trial court erred in dismissing his state law claims 

without addressing those claims. The trial court made findings in its order but then 

granted the TDCJ employees’ motion to dismiss and motion for summary judgment. 
Wion v. State Page 6

The grounds for granting the summary judgment, however, were not specified by the 

trial court. If the trial court does not specify the grounds upon which a summary 

judgment is granted, we must affirm the summary judgment if any of the grounds 

specified in the motion have merit. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120-21 

(Tex. 1970). The appealing party must show on appeal that it is error to base granting a 

summary judgment on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 

915 S.W.2d 471, 473 (Tex. 1995). 

The TDCJ employees raised the defense of official immunity to Wion’s state law 

claims. Wion does not argue on appeal that the trial court erred in basing its summary 

judgment on the official immunity defense. Accordingly, because Wion does not 

challenge the summary judgment of the ground of official immunity, we affirm the 

summary judgment as to Wion’s state claims. 

Appointment of Counsel

Lastly, Wion complains that the trial court erred in denying Wion’s motion for 

the appointment of counsel. The trial court may appoint counsel for a party who makes 

an affidavit that he is too poor to employ counsel. TEX. GOV'T CODE ANN. § 24.016 (West 

2004). There is no requirement that a civil litigant must be represented by counsel. See

Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003). But the Texas Supreme Court has 

suggested, in other contexts, that under exceptional circumstances, "the public and 

private interests at stake [may be] such that the administration of justice may best be 

served by appointing a lawyer to represent an indigent civil litigant.” Id., (quoting

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996)). Following this 
Wion v. State Page 7

suggestion, appellate courts have held that a trial court does not abuse its discretion in 

refusing to appoint counsel when the indigent party fails to demonstrate why the public 

and private interests at stake are so exceptional that the administration of justice is 

served by the appointment. Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 

2001, no pet.); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston [1st Dist.] 

1996, no pet.). That a person is an inmate does not render the cause exceptional. Gibson, 

102 S.W.3d at 713. 

Wion provides no basis for a finding that his case warrants the appointment of 

counsel. He merely asserts that appellees enjoy a “seriously unequal advantage” 

because Wion has no counsel. However, Wion does nothing to explain why the public 

and private interests at stake are so exceptional that the administration of justice is 

served by the appointment of counsel. Accordingly, the trial court did not abuse its 

discretion in denying Wion’s motion to appoint counsel. 

CONCLUSION

Because we affirm the summary judgment as to Wion’s § 1983 claims and his 

state law claims, we need not discuss Wion’s remaining issues which challenge the 

propriety of the trial court’s judgment granting the TDCJ employees’ motion to dismiss. 

Wion’s issues necessary to the disposition of this appeal are overruled and the trial 

court’s judgment is affirmed.

TOM GRAY

Chief Justice
Wion v. State Page 8

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed March 30, 2011

[CV06]