Affirmed in part, Dismissed in part, and Majority and Concurring Opinions 

filed March 19, 2019.

In The

Fourteenth Court of Appeals

NO. 14-17-00981-CV

JERRY SANCHEZ, TIMOTHY WILIAMS, AND JOSE ESTRADA, 

Appellants

V.

JAMES DANIEL BOONE, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 91722-1

C O N C U R R I N G O P I N I O N

I concur in the court’s judgment but write separately to expand on my 

reasoning for doing so.

Appellants challenge the denial of their plea to the jurisdiction on essentially 

three grounds. Their first and second arguments apply to the “handmade items,” 

which are the dog tag and the ring. First, the officers contend Boone has alleged 
2

no facts and presented no evidence that the officers committed theft as to the 

handmade items. Second, the officers say Boone’s theft claim should be dismissed 

under the doctrine of “de minimus non curiat lex”—the law cares not for small 

things.1 Third, the officers argue that they conclusively established their 

entitlement to official immunity as to all items allegedly confiscated and not 

returned. 

I agree with the majority that we lack interlocutory appellate jurisdiction 

over the officers’ first two arguments under Texas Civil Practice and Remedies 

Code section 51.014(a)(5).

2

 I begin with a preliminary observation regarding 

whether our appellate jurisdiction is invoked under section 51.014(a)(5) 

(applicable to assertions of immunity by officers or employees) as opposed to 

section 51.014(a)(8) (applicable to orders granting or denying pleas to the 

jurisdiction by governmental units). The officers’ notice of appeal cites section 

51.014(a)(8) as the basis for appeal and states that “this is an appeal of a trial 

court’s partial denial of a plea to the jurisdiction by a governmental unit.” Section 

51.014(a)(8) is not a proper basis for interlocutory appellate jurisdiction in this 

case. To the extent the officers were sued in their official capacities, such claims 

are considered to be asserted against their governmental unit employer;3 however, 

the trial court granted the officers’ plea as to any such claims and neither party 

complains of that ruling. The officers’ only arguments on appeal pertain to the 

 

1

See Smith v. Stevens, 822 S.W.2d 152, 152 (Tex. App.—Houston [1st Dist.] 1991, writ 

denied).

2 Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). Because section 51.014 is a narrow 

exception to the general rule that only final judgments and orders are appealable, we strictly 

construe it. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). 

3

See, e.g., Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—

Houston [1st Dist.] 1999, pet. dism’d w.o.j.).
3

claims asserted against them in their individual capacities. Thus, I construe the 

notice of appeal as one seeking review under section 51.014(a)(5) only.

Under section 51.014(a)(5), a “person” may appeal from an interlocutory 

order of a district court denying “a motion for summary judgment that is based on 

an assertion of immunity by an individual who is an officer or employee of the 

state or a political subdivision of the state.” Tex. Civ. Prac. & Rem. Code 

§ 51.014(a)(5).4 “Immunity” as used in this section refers to “official immunity.” 

See City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993). Official 

immunity is a common law affirmative defense rendering individual officials 

immune from both liability and suit. See Ballantyne v. Champion Builders, Inc., 

144 S.W.3d 417, 422 (Tex. 2004); DeWitt v. Harris County, 904 S.W.2d 650, 653 

(Tex. 1995); Kassen v. Hatley, 887 S.W.2d 4, 8-9 (Tex. 1994). Because official 

immunity is an affirmative defense, the party asserting it must plead and prove all 

of its elements. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). 

Government employees are entitled to official immunity from suit arising from the 

performance of their (1) discretionary duties in (2) good faith as long as they are 

(3) acting within the scope of their authority. Id.

Several courts of appeals, including ours, have held that section 51.014(a)(5) 

does not confer interlocutory appellate jurisdiction over arguments that are not 

based on “assertions of immunity.” See Baylor Coll. of Med. v. Hernandez, 208 

S.W.3d 4, 11 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (court of 

appeals lacked interlocutory jurisdiction under section 51.014(a)(5) because 

 

4 Although section 51.014(a)(5) specifically references a “motion for summary 

judgment,” the Supreme Court of Texas has held that an appeal may be taken from orders 

denying “assertions of immunity” regardless of the procedural vehicle used. Austin State Hosp.

v. Graham, 347 S.W.3d 298, 301 (Tex. 2011). That the officers appeal from the denial of a plea 

to the jurisdiction thus does not preclude our jurisdiction so long as, and to the extent that, the 

plea was based on an assertion of immunity.
4

employees’ motion not based on assertion of official immunity); Dallas County v. 

Gonzales, 183 S.W.3d 94, 114 (Tex. App.—Dallas 2006, pet. denied) (holding no 

appellate jurisdiction under section 51.014(a)(5) because appellant’s argument did 

not assert his actions were discretionary, made in good faith, and within the scope 

of his authority); Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 470-71 (Tex.

App.—Houston [1st Dist.] 2002, no pet.); see also Tumlinson v. Barnes, No. 03-

15-00642-CV, 2017 WL 1832488, at *2 (Tex. App.—Austin May 5, 2017, no pet.)

(mem. op.) (interlocutory appellate jurisdiction existed under section 51.014(a)(5) 

only to the extent the order denied an assertion of immunity raised in plea to 

jurisdiction). Thus, our jurisdiction over the order denying the officers’ plea is 

limited only to the portions of the plea based on immunity.5 

 

5 As noted by the majority, the Supreme Court of Texas recently considered the scope of 

interlocutory appellate jurisdiction under section 51.014(a)(6), which permits interlocutory 

appeal from “an . . . order . . . that . . . denies a motion for summary judgment that is based in 

whole or in part upon a claim against or defense by” a member of the media or a person quoted, 

arising under constitutional free speech and press guarantees or Texas libel statutes. See Dallas 

Symphony Ass’n, Inc. v. Reyes, No. 17-0835, 2019 WL 1090771 (Tex. Mar. 8, 2019). The court 

held that section 51.014(a)(6) allows a summary judgment movant to appeal an order denying its 

motion as to all grounds raised in the motion so long as those grounds included the issues stated 

in section 51.014(a)(6). Id. at *4-5. The court rejected the respondent’s argument that the scope 

of interlocutory jurisdiction was limited to the portion of the order denying summary judgment 

on claims or defenses arising under constitutional free speech and press guarantees or Texas libel 

statutes. Id. The present appeal, however, is based on section 51.014(a)(5), not section 

51.014(a)(6). The former’s language differs from the latter’s in that appeals under section 

51.014(a)(5) involve an “interlocutory order . . . that denies a motion for summary judgment 

based on an assertion of immunity . . . .” Tex. Civ. Prac. & Rem. Code § 51.014(a)(5) (emphasis 

added). The cases cited above, and others, have interpreted section 51.014(a)(5) not to extend to 

issues other than those specified, i.e., an officer’s assertion of immunity. In Dallas Symphony, 

the court noted the difference in language between sections 51.014(a)(5) and 51.014(a)(6), but it 

also expressly declined to opine whether courts’ limited interpretation of section 51.014(a)(5) 

was incorrect. Dallas Symphony, 2019 WL 1090771, at *5. As neither Dallas Symphony nor 

any other Texas Supreme Court decision has disapproved our holding in Baylor College of 

Medicine v. Hernandez, we are bound to adhere to this court’s precedent. See, e.g., Lopez v. 

State, 478 S.W.3d 936, 943 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); Univ. of Tex. 

Health Sci. Ctr. v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th Dist.] 2011, no 

pet.); Kiffe v. State, 361 S.W.3d 104, 116 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(Jennings, J., concurring).
5

In fundamental character, the officers’ first argument is not an assertion of 

an official immunity affirmative defense; it is an attack on one or more required 

elements of Boone’s case-in-chief.

6

 According to the officers, the handmade items 

either did not exist or were not taken from Boone’s cell. They contend no 

evidence exists that “those items were in Boone’s possession at the time of the cell 

search.” As the officers state in their brief, because Boone lacks evidence of at 

least one element of his theft claim the court need not reach the official immunity 

issue at all, and the officers were not tasked with proving the affirmative defense. 

Thus, addressing the officers’ first argument, they acknowledge, does not require 

that we reach the official immunity issue. Accordingly, the officers’ first point is 

not an “assertion of immunity,” and we lack interlocutory appellate jurisdiction 

under section 51.014(a)(5) to address it. See Hernandez, 208 S.W.3d at 11.

The officers’ second argument appears to be a merits-based affirmative 

defense that the value of the allegedly stolen handmade items is simply too small 

to justify legal relief. It too is not grounded in immunity. The officers cite no 

authority holding that the de minimus non curiat lex doctrine constitutes an 

assertion of immunity. Courts that have applied the doctrine, like Smith v. Stevens7

cited by the officers, did so in the context of chapter 13 or chapter 14 dismissals of 

 

6 The very nature of an affirmative defense assumes the plaintiff’s allegations are true as 

to a cause of action. See LaGloria Oil & Gas Co. v. Carboline Co., 84 S.W.3d 228, 232 n.3

(Tex. App.—Tyler 2001, pet. denied) (“By definition, an affirmative defense . . . assumes that 

the allegations in the plaintiff’s petition are true.”); RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, 

957 S.W.2d 121, 129-30 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Metrocon Constr. 

Co., Inc. v. Gregory Constr. Co., 663 S.W.2d 460, 463 (Tex. App.—Dallas 1983, writ ref’d 

n.r.e.) (affirmative defense assumes the truth of the plaintiff’s allegations, but avoids liability 

based on other facts the defendant must prove). The officers’ first argument does not assume 

Boone’s theft allegations are true; it contends the allegations are false or unsupported by 

evidence.

7

822 S.W.2d at 152.
6

pauper suits or inmate litigation.

8

 The officials in Smith did not rely on the 

doctrine to establish immunity nor did the court discuss the doctrine as preserving 

official immunity. See Smith, 822 S.W.2d at 152.9 In sum, I agree that we lack 

interlocutory appellate jurisdiction to address the officers’ first two arguments.10 

We do, however, possess jurisdiction over the portion of the officers’ 

appellate argument challenging the trial court’s denial of their plea to the 

jurisdiction that requested judgment based on official immunity. See Tex. Civ. 

Prac. & Rem. Code § 51.014(a)(5). Whether the officers established the good faith 

element of the official immunity defense is the critical issue for our purposes. To 

establish good faith, the officers were required to show that a reasonably prudent 

officer, under the same or similar circumstances, could have believed that the 

conduct was justified based on the information the officers possessed when the 

conduct occurred. See Ballantyne, 144 S.W.3d at 426; Telthorster v. Tennell, 92 

S.W.3d 457, 461 (Tex. 2002); City of Lancaster, 883 S.W.2d at 656-57. 

The Ninth Court of Appeals considered a theft claim comparable to Boone’s 

in Turner v. Fox. There, Christopher Turner, an inmate, sued Vera Fox, a 

correctional officer, claiming that Fox’s confiscation of Turner’s boots constituted 

 

8

See Tex. Civ. Prac. & Rem. Code §§ 13.001 et seq.; 14.001 et seq.

9

In Smith, an inmate sued a prison official in his individual capacity for $3.55 in 

damages based on allegations that the official took the inmate’s coffee and cigarettes. See Smith, 

822 S.W.2d at 152. The trial court dismissed the suit under chapter 13 and the court of appeals 

affirmed, holding “any error is harmless because the amount of actual damages is insignificant.” 

Id.

10 Nothing about our conclusion on appellate jurisdiction prevents the officers from 

advancing their arguments in the trial court through available procedural mechanisms, such as 

no-evidence or traditional motions for summary judgment or motions to dismiss under Texas 

Civil Practice and Remedies Code chapters 13 or 14. See, e.g., Turner v. Fox, No. 09-12-00541-

CV, 2013 WL 5775771, at *1-2 (Tex. App.—Beaumont Oct. 24, 2013, pet. denied) (mem. op.) 

(officer moved for summary judgment on grounds that inmate could not prove elements of theft 

claim).
7

theft under Texas Civil Practice and Remedies Code section 134.003. Turner, 

2013 WL 5775771, at *1. Like Boone, Turner pursued the applicable internal 

grievance process, which was denied due to Turner’s “questionable ownership” of 

the boots. Id. Fox filed a motion for summary judgment asserting two arguments: 

(1) Turner had no evidence that Fox confiscated the boots unlawfully; and (2) Fox 

was entitled to official immunity because she acted within the scope of her 

authority, performed discretionary duties, and had a good faith belief that the 

confiscated boots had questionable ownership. Id. The trial court granted Fox’s 

motion and dismissed the claims. The court of appeals affirmed the judgment, 

reasoning on the immunity issue that Fox proved she acted in good faith based on 

the information she had at the time she confiscated the boots. Id. at *2-3. Fox 

presented evidence that ownership of the boots was questionable because they 

were not Turner’s size, and Turner presented no credible evidence of ownership. 

Id. During the grievance process, two other officers conducted independent 

investigations and also concluded that Turner presented insufficient evidence of 

ownership. Id. at *3. Thus, the court held that Turner showed that a reasonably 

prudent officer could have believed that her conduct in confiscating the boots was 

justified based on the information Fox possessed when her conduct occurred. See 

id. Because Turner did not meet his burden to show that no reasonable officer 

similarly situated and possessing the same information could have believed the 

facts were such that they justified the conduct, summary judgment on official 

immunity grounds was proper. See id. 

Boone’s Texas Theft Act liability claims against the officers in their 

individual capacities potentially state a claim under Texas law.11 See Minix v. 

Gonzales, 162 S.W.3d 635, 639 (Tex. App.—Houston [14th Dist.] 2005, no pet.). 

 

11 Boone’s allegations as to his dog tag, however, implicate only Sergeant Estrada and not 

the other officers. 
8

“A person who commits theft is civilly liable under the Act ‘for the damages 

resulting from the theft.’” Beaumont v. Basham, 205 S.W.3d 608, 618 (Tex.

App.—Waco 2006, pet. denied) (quoting Tex. Civ. Prac. & Rem. Code 

§ 134.003(a)). A person commits the offense of theft if “he unlawfully 

appropriates property with intent to deprive the owner of property.” Tex. Penal 

Code § 31.03(a). 

Official immunity being an affirmative defense, the officers were obligated 

to establish all of its elements. Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 

117, 128 (Tex. 2015). I concur with the majority that the officers conclusively

established their entitlement to official immunity with respect to the typewriter, 

and that the trial court’s order denying their plea as to the alleged theft of that item 

was error. The record shows conclusively, including by Boone’s admission, that 

he used the typewriter to conceal contraband, which was the reason the typewriter 

was confiscated and not returned. According to Boone’s allegations, he 

intentionally used the typewriter to hide SIM cards and showed the officers where 

they were hidden. When asked where the cell phones were located, Boone insisted 

he did not know, but if he did know he could not say because it “would put [his] 

life in danger.” Possession of contraband is a violation of Texas Department of 

Criminal Justice rules.

12

 This record demonstrates conclusively that reasonably 

prudent officers in the defendants’ position could have believed that their conduct 

in confiscating and not returning the typewriter was justified based on the 

information possessed when the conduct occurred. See Turner, 2013 WL 

5775771, at *3; see also Kendall v. Poos, No. 05-99-01391-CV, 2001 WL 580136, 

at *6 (Tex. App.—Dallas May 31, 2001, no pet.) (not designated for publication) 

(officer established good faith as to conversion claim for impounded vehicle); 

 

12 With respect to persons in the custody of a correctional facility, possession of SIM 

cards is also a felony under Texas Penal Code section 38.11(a)(3). 
9

Dorrough v. Faircloth, 443 S.W.3d 278, 288-89 (Tex. App.—San Antonio 2014, 

no pet.) (allegation of intentional torts against game warden after warden 

questioned plaintiffs about interfering with others’ rights to fish; warden 

established good faith in questioning the plaintiffs and held entitled to official 

immunity); Gonzales v. Kelley, No. 01-10-00109-CV, 2010 WL 2650615, at *6-8

(Tex. App.—Houston [1st Dist.] July 1, 2010, no pet.) (mem. op.) (officers 

established that repeated use of taser was in good faith in defeating assault claim);

Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin 2007, no pet.) (in 

defamation case, court examined whether governor’s former chief-of-staff made 

allegedly defamatory statements in good faith; court held former official was 

entitled to immunity); Gidvani v. Aldrich, 99 S.W.3d 760, 764 (Tex. App.—

Houston [1st Dist.] 2003, no pet.) (district attorney proved good faith and entitled 

to official immunity regarding decision to order autopsy). Boone has not presented 

evidence that no reasonable and similarly situated official could have believed that 

the conduct was justified. 

As to the handmade items—the dog tag and the ring—the record is not as 

well developed as it is with regard to the typewriter. The plea to the jurisdiction 

and attachments do not offer a justification for confiscating the handmade items 

specifically nor do the officers assert a justification in their brief on appeal. In 

contrast to the circumstances in Turner, the officers filed no affidavits or other 

evidence explaining the reason why confiscating the handmade items was 

reasonably justified based on the information the officers possessed. It is not clear 

from our record whether Boone was entitled to possess the dog tag and the ring, 

and the officers do not argue that those items are contraband or that Boone was not 

otherwise entitled to possess them. The officers’ good faith argument on appeal 

does not acknowledge those items were confiscated; they claim the handmade
10

items either do not exist or they never took them. They characterize Boone’s 

complaint as alleging that the officers “lost” his handmade items, and they argue 

that misplacing an inmate’s property “does not per se demonstrate a lack of good 

faith.” The officers also contend they returned all of Boone’s property or 

explained why they were justified in not returning any property retained. In this 

case’s current posture, and on this record, I cannot say the trial court erred in 

denying the official immunity argument asserted in the plea as to the dog tag and 

the ring because the officers did not meet their burden to establish good faith as to 

those items. 

The officers state that they acted in good faith in performing a search and 

inventory of Boone’s cell and property, a proposition Boone apparently does not 

dispute. But Boone is not complaining of his cell search; Boone alleges theft of his 

handmade items under section 134.003. Assuming the officers were justified in 

performing the search of Boone’s cell and completing an inventory, and because 

they seek dismissal based on the official immunity defense, they nonetheless bore 

the burden to prove that a reasonably prudent officer could have believed that 

confiscating the property at issue was justified based on the information the 

officers possessed when that conduct occurred. See Turner, 2013 WL 5775771, at 

*3 (examining good faith in confiscating inmate property); Gonzales, 2010 WL 

2650615, at *6-8 (examining good faith in use of taser); Kendall, 2001 WL 

580136, at *6 (examining good faith in decision to impound vehicle). They met 

this burden with respect to the typewriter but not the handmade items. 

/s/ Kevin Jewell

Justice

Panel consists of Justices Wise, Jewell, and Bourliot (Bourliot, J., majority).