## NUMBER 13 - 1 8 - 00 395 - C V COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

RICHARD SMITH , Appellant,

v. JODIE RAYFORD, ET AL. , Appellee s . On appeal from the 156 th District Court of Bee County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justice s Hinojosa and Tijerina 

## Memorandum Opinion by Justice Hinojosa This is an inmate litigation case brought under Chapter 14 of the Texas Civil Practice and Remedies Code. See T EX

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. By two issues, appellant Richard Smith complains that the trial court abused its discretion by: (1) dismissing his lawsuit against appellees Jodie Rayford, Corey Furr, Garrett2 Saxon, Cinthia Guzman, Kathryn Gaitan, Nancy Trevino, and James Thompson, all employees of the Texas Department of Criminal Justice; and (2) allowing an assigned judge to pre side when Smith objected to the assignment prior to his final hearing. We affirm. I. B ACKGROUND Smith is an inmate at the Texas Department of Criminal Justice McConnell Unit in Beeville, Texas. In his o riginal p etition, Smith alleges that Rayford, an officer at the McConnell U nit, issued a false disciplinary report against him for allegedly threaten ing her on July 14, 2017. Smith asserted that Rayford’s fellow employees

— Furr, Saxon, Guzman, Gaitan, Trevino, and Thompson

— supported Rayford in her “bogus report” by making “false representations” and “alter[ing] witness statements.” He further alleged that they “hid exculpatory evidence” and “alter[ed] the charging instrument.” Smith also asserted that nepotism was involved in the incident because Rayford’s husband is a warden at the McConnell Unit. According to Smith, his “disciplinary case was finall y overturned at the Step 2 Grievance level.” On December 19, 2017, Smith sued appellees for threat of bodily injury, fraud, breach of contract, respondeat superior, conspiracy, and assisting and encouraging. He cited the grievance decision as proof of hi s claim. In his o riginal
p etition, he “object[ed] to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial.” He sought exemplary damages, declaratory relief, and injunctive relief.3 On December 21, 2017, Judge David Peeples, Presiding Judge of the Fourth Administrative Judicial Region of Texas, assigned Senior Judge Joel B. Johnson to preside over this case. Smith then filed “Plaintiff[’]s Objection to Assigned Judge and to Recuse [sic] .” It wa s dated January 9, 2018 and postmarked January 10, 2018. He filed another objection on March 21, 2018. The trial court dismissed the case as frivolous on May 31, 2018. The final judgment does not state whether the dismissal is with prejudice. Smith app ealed. II. D ISMISSAL OF C HAPTER 14 L ITIGATION By his first issue, Smith complains that the trial court dismissed his lawsuit against appellees “for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code.” A. Standard of Review & Applicable Law We review a trial court’s dismissal of a claim pursuant to Chapter 14 of the Texas Civil Practice and Remedies C ode under an abuse of discretion standard. Wanzer v. Garcia , 299 S.W.3d 821, 827 (Tex. App.

— San Antonio 2009, pet. denied); see also McCann v. De Hoyos , No. 13

- 18

- 00528

- CV, 2019 WL 3820427, at *1

– 2 (Tex. App.

— Corpus Christi

– Edinburg Aug. 15, 2019, no pet. h.) (mem. op.). The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guidin g rules and principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.3d 238, 241

– 42 (Tex. 1985). “The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumst ance does not demonstrate that an abuse of discretion has occurred.” Id. at 242.4 A trial court may dismiss an inmate’s claim as frivolous or malicious under C hapter 14 based on the following factors: the claim’s ultimate chance of success; whether the cl aim has an arguable basis in law or fact; whether it is clear that the party cannot prove facts in support of the claim; or whether the claim is substantially similar to a previous claim filed by the petitioner because it arises from the same operative fac ts. See T EX

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. § 14.003(a)(2), (b)(2). “A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory.” Fernandez v. T ex

. D ep’t of C rim

. J ustice , 341 S.W.3d 6, 13 (Tex. App.

— Waco 2010, no pet.). Dismissal with prejudice is improper if the dismissal is based on procedural defects that the inmate can correct. See id. However, if the claim has no arguable basis in law, then dismissal with prejudic e is proper. Id. B. Analysis We note that there is no civil cause of action for “assisting and encouraging,” as Smith alleges in his original petition. Accordingly, the trial court did not abuse its discretion for dismissing th is cause because it has no arguable basis in law

. See id. Similarly, Smith’s breach of contract claim fails, too, because Smith has not identified any binding contract between him and the named appellees. See id .; see also T EX

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. § 14.003(b)(3) (providing that trial courts can dismiss cases when “it is clear that the party cannot prove facts in support of the claim”). Regarding Smith’s remaining causes of action

— common law fraud, “threat of bodily injury,” respondeat superio r, and conspiracy

— we note that all of the appellees were employees of the Texas Department of Criminal Justice McConnell Unit . Section5 101.106 of the Texas Tort Claims Act states: [i]f a suit is filed against an employee of a governmental unit based on co nduct 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. T EX

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. § 101.106(f). A suit is completely foreclosed against a government employee in his individual capacity if he is acting within the scope of his employment. Franka v. Velasquez , 332 S.W.3d 367, 381 (Tex. 2011). The Texas Supreme Cou rt in Franka held that a case is considered against an employee within his or her official capacity if: (1) the defendant was an employee of a governmental unit; (2) the defendant was acting within the general scope of his employment; and (3) the suit

cou ld have been brought under the Texas Tort Claims Act against the agency. See id. Here, all of the appellees meet the first Franka element: they are all employees of the Texas Department of Criminal Justice McConnell facility, a governmental unit. See Lo pez v. Serna , 414 S.W.3d 890, 894 (Tex. App.

— San Antonio 2013, no pet.). As to the second Franka requirement, the Texas Tort Claims Act defines scope of employment as “the performance for a governmental unit of the duties of an employee ’ s office or employment and includes being in and about the performance of a task lawfully assigned to an employee by a competent authority.” T EX

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. § 101.001(5). Because it is within appellees’ job description to cooperate with all internal investigations regarding alleged threats made by inmates, we conclude that appellees were acting within the scope of their employment when they engaged in the actions6 complained of in Smith’s petition

. See Lopez , 414 S.W.3d at 894. Finally, we hold that the third Franka prong is satisfied, too. “[I] f a state employee is alleged to have committed . . . ‘wrongful conduct’ in the general scope of employment, then the suit is subject to section 101.106(f) because it could have been brought against the state agency.” Lopez , 414 S.W.3d at 895 (citing Franka , 332 S.W.3d at 381). This tenet applies to both unintentional and intentional torts. See id. Accordingly, Smith’s suit is subject to § 101.106(f) of the civil practice and remedies code. His lawsuit is against the appellees in their official, not individual, capacities, and the appellees were entitled to have the case dismissed against them and have Smith name the Texas Department of Criminal Justice (TDCJ) as the sole defendant. See id. Smi th ’ s claim against the Department, however, is barred by sovereign immunity because the Texas Tort Claims Act does not expressly waive immunity for intentional torts. See id. at 896. In sum, b ecause the appellees were acting in the scope of their employme nt, any suit brought against them in their individual capacities is barred. See Franka , 332 S.W.3d at 381. And if Smith named the TDCJ as the sole defendant in his claim, that claim would be barred by sovereign immunity. See Lopez , 414 S.W.3d at 896. The trial court did not err in dismissing Smith ’ s claims because they have no basis in law. See Fernandez , 341 S.W.3d at 13. We cannot say the trial court’s decision to dismiss was arbitrary or unreasonable. See Downer , 701 S.W.3d at 241

– 42. We overrule Smith’s first issue. III. O BJECTION TO A SSOCIATE J UDGE By his second issue, Smith asserts the trial court abused its discretion when it7 allowed an assigned judge to rule on the final judgment when he had objected to the judge prior to any hearing. A. Standard of Review and Applicable Law Whether a trial court has jurisdiction is a question of law that we review de novo. Harris County v. Annab , 5 47 S.W.3d 609, 612 (Tex. 2018). Assigned judges are active, retired or senior judges. See T EX

. G OV ’ T C ODE A NN

. § 74.054. An assigned judge may not hear a case if a party submits a timely objection no later than seven days after the party receives actual notice of the assignment or before the first hearing of the trial, whichever is sooner. See id. § 74.053. A timely objection to a judge “assigned” under Chapter 74 of the Texas Government Code is automatically effective and any subsequent order re ndered by the assigned judge is void. In re Canales , 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding)

. B. Analysis Smith claims that he preemptively objected to the judge in his original petition. Specifically, his initial filing “object[ed] to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial.” However, Ju dge Johnson is an assigned judge, not an associate judge. See T EX

. G OV ’ T C ODE A NN

. § 74.054. The order appointing him set forth that Judge Johnson was the “Senior Judge of the 156th District Court of the State of Texas.” See id

. We also find that Smith’s objection was premature. See Di scovery Operating, Inc. v. Baskin , 855 S.W.2d 884, 887 (Tex. App.

— El Paso 1993, no writ) ; see also In re Carnera , No. 05

- 16

- 00055

- CV, 2016 WL 323654, at *2 (Tex. App.

— Dallas Jan. 27, 2016,8 no pet.) (mem. op.). “A party does not possess the right to object to the assignment of a visiting judge before the assignment takes place.” Discovery Operating, Inc. , 855 S.W.2d at 887 . “Section 74.053 clearly contemplates that assigned judge objection s will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings.” See T EX

. G OV ’ T C ODE A NN

. § 74.054; see also In re Carnera , 2 016 WL 323654, at *2

. Here, Smith filed his original petition and objection on December 19, 2017, but the Presiding Judge of the Fourth Administrative Judicial Region did not appoint Judge Johnson until December 21, 2017. Accordingly, the objection in Smith’s original petition did not preserve this issue. Smith later filed “Plaintiff[’]s Objection to Assigned Judge and to Recuse” on January 9, 2018 . However, because the deadline for filing an o bjection to an assigned judge is seven days after the notice of appointment or the case’s first hearing, whichever is sooner, Smith missed the deadline. See T EX

. G OV ’ T C ODE A NN

. § 74.053. To be timely, Smith must have filed his objection by December 28, 2017

— seven days after the appointment of Judge Johnson. We overrule Smith’s second issue. IV. C ONCLUSION We affirm the trial court’s judgment

. LETICIA HINOJOSA Justice Delivered and filed the 24th day of October, 201 9

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