NO. 07-03-0139-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MARCH 21, 2005

______________________________ MICHAEL W. BROWN, APPELLANT

V. JANIE COCKRELL, ET AL., APPELLEE

_________________________________ FROM THE 181ST DISTRICT COURT OF POTTE R COUNTY; NO. 90,60 9-B; HONO RABLE J OHN B. BOARD, JUD GE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
MEMORAND UM OPINION Appellant

Michael W. Brown, a prison inmate acting pro se , filed a complaint alleging that Ninfa Islas, an employee of the Texas D epartment of Criminal Justice, wrongfully confiscated and converted postage stamps belonging to Brown having a value of $15.13, and further a lleging that Isla s and Ch ris Wieck , also a TDCJ emp loyee, mi sused a S tate form by not en su ring that two correctional guards witnessed the inventorying of his-2-

property. Brown’s complaint also names Janie C ockrell, Director of the Texas Department of Criminal Justice, alleging she has fail ed to pro vide a p rocedurewhereby prisoners can gather evidence to substantiate claims against prison guards. With the compla int, Brown filed an affidavit of inability to pay costs. The trial court dismissed the s uit before service of process pursuant to Chapte r 14 of th e Civil Practiceand Reme dies Cod e. See Tex. Civ. Prac. & Rem. C ode Ann. § 14.003 (a)-(b) (Ve rnon 200 2). Brown appeals the dism issal. W e affirm thetrial co urt’s ord er.
When an inmate files a lawsuit and an affidavit of inability to pay costs, the suit may be dismissed if

the court finds it

is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.002. In determining whether a claim is frivolous or malici ous, the court may consider whether it has no arguable b asis in law. Id. , § 14.003(b)(2). Trial courts have broad discretion to determine whether a case should be d is missed un der Chap ter 14. Retzlaff
v. Texas De p’t of C

rimina l Justice, 94 S.W.3d 650, 653 (Tex.App.–Houston [14 th Dist.] 2002, pet. den ied); Montana v. Patterson , 894 S.W.2d 812, 814-15 (Tex.App.–Tyler 1994,
no writ). We will not interfere with the exercise of that discretion absent proof the trial court abused its discretion, acting arbitrarily or unreasonably in light of all the ci rcumstances in the case, without reference to any guiding rules and principl es. Lewis v. Johnson , 97 S.W.3d 88 5, 886-87(Tex.Ap p.–Corpu s Christi 2003, no pet.).
The Texas Department of Criminal Justice–Institutional Division is a governmental unitof the State of Te xas. See Tex. Ci v. Prac. & Rem. Code Ann. §101.001(3)(A) (Vernon Supp. 2004). In Texas, a governmental unit is immune from suit and l iability unless the State consents

. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 5 40, 542 ( Tex. 200 3);-3-

Tex. D ep ’t of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). Governmental immunity from suit defeats a court’s s ubject mat ter jurisd iction. Whitley , 104 S.W.3d at 542. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid wai ver of immunity. Id. Although appella nt’s peti tion doe s not spe cificall y state whether his claims against Islas and Wieck are brought in their individual or official capacities, it does identify them as correctional officers and guards, and suggests the actions of which he compl ains wer e taken in the course of their employment. Suits against gove rnment employees in their official capacity

are in fa ct claims

against the gove rnment. Ware v. Miller , 82 S.W.3d 795, 8 00 (Tex.Ap p.–Amaril lo 2002, pet. den ied); Friona Indep. Sch. Dist. v. King , 15 S.W.3 d 653, 657 n.3 (Tex.Ap p.–A marillo 2000, no pet.). See Brandon v. Holt , 469 U.S. 464, 471 (1985).
Brown’s claim of misuse of a State form and reference s to the T exas To rt Claims Act indicatehe is attempting to allege that the officers’ use of

tangible personal property caused him personal injury, thereby placing his claim withi n the Tor t Claims Act’s waiver of the State’s i mmunity fr

om suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997). Although the paper on which a form is printed is tangible, Brown’s claim that he lost his postage stamps be cause Sta te employe es misuse d the form by faili ng to ensure that itwas completed correctly does not fall within the Tort Cl aims Act’s waiver of immunity for at least two reasons. First, the substan ce of Bro wn’s complaint is that guards did not witness the inventory of his property, permitting his stamps to be confiscated improperly. The loss of the stamps was not “caused by” the use of the tangible form. See Universi ty-4-

of Tex. Med. Branch v

. York, 871 S.W.2d 175, 178-79 (Tex. 1994 ); Russell v. Texas Dep’t of Human Resources , 746 S.W.2d 510, 513 (Tex .App.–Texarka na 1988, writ den ied). Second, section 101.021(2) of the Tort Claims Act waives immunity

with res pect to cl aims for personal injury and death. Brown’s complaint invo lves loss of property.
To the extent Brown’s complaint simply seeks recovery for the confiscation of hi s stamps, we note that this court, among others, has applied the doctrine of de minimis

non curiat lex to affirm the dismi ssal as f rivolous of suitsbrought byinmates over the claimed confiscation by priso n employees of pro perty having insignificant value. See Hammonds
v. Camp , 2004 WL

769373, at *2 (Tex. App.–Ama rillo Ap ril 12, 2 004, no p et.); Smith v. Velasquez , 1995 WL 217206, at *3 (Tex .App.–Ho uston [1 stDist.] Ap ri l 13, 199 5, writ denied), cert. denied , 516 U.S . 1054, 1 16 S. Ct. 725, 133 L. Ed. 2d 677 (199 6); Smith v. Stevens , 822 S.W.2 d 152 (Te x.App.–H ouston [1 stDist.] 19 91, writ d enied). See also Thompson v. Mannix , 814 S. W.2d 811, 812 (Tex.App.–Waco 1991, no writ) (finding trial court cou ld have invoked doctrine ). Further, where the purpo se of a proceeding against state officials is to control an action of the State or sub ject it to liabili ty, it i s a su it against the State within the rule of immunity of the State from su it. Griffin v. Hawn , 161 Tex. 422, 424, 341 S.W.2d 151, 152 (1960). The trial court reasonably could have con cluded that Brown’s c laims asserted againstthe director of the TDCJ, complaining of her failure to adoptor implement policies and procedures, fall in that category. There is nothing i n Brown’s pleadings to indicate that
a waiver of immunity or

legislative consent applies to his compl aintagainst the dire ctor. See generally Tex. Civ. Prac. & Rem. Code Ann. § 10 7.001-.00 2. Withou t a waive r of immun ity-5-

or legisla tive cons ent, the t rial cou rtlacked s ubject mat ter jurisd iction to

hear the suit and did not a buse its discreti on in di smissing it. Finding the trial court ’s dismissal of appel lant’s s uit was n ot an abu se of its discreti on, we af

firm its o rder.

James T. Campbell Justice