### IN THE TENTH COURT OF APPEALS
No. 10
- 07
- 00361
- CV
GORDON R. SIMMONDS , Appellant
v. TDCJ, ET AL
. , Appellee

From the 12th District Court Madison County, Texas Trial Court No. 23516

M E M O R A N D U M O P I N I O N

Gordon Simmonds, a state prison inmate, a ppea ls the trial court’s frivolousness
dismissal of his suit against the Texas Department of Criminal Justice

— Institutional
Division ( the TDCJ) and several TDCJ officials or employees: Captain Kenneth N. Simmons, Warden Charles T. O’Reilly, Lieutenant Bob K. Castleberry, Investigator David P. McLeod, and Grievance Investigator T awn Roddey. Factual Background and Allegations Simmonds’s claims center around the alleged wrongful confiscation of hisSimmon ds v. TDCJ Page 2

personal propert y by TDCJ employees. He alleged in his seco nd amended petition that

o n March 15, 2006, during a semi

- annual and unit

- w ide “shakedown” at the H untsville
U nit, Simmons and Castleberry confiscated (1) Simmonds’s typewriter because it contained contraband and (2) numerous personal items belonging to Si mmonds because they allegedly were excess ive property. Simmons and Castleberry seized the typewriter because Simmonds had stored
inside it a bottle of “white

- out” correction fluid and “scotch” tape, both of which are
contraband (which Simmonds does not di spute )

. Simmonds alleged that no TDCJ rule allowed for the typewriter’s seizure and that its seizure without such a rule and without disciplinary action being brought against him violates due process. As for Simmonds’s other personal property, Simmonds a lleged that t he sizing bin that TDCJ uses in a shakedown measures two cubic feet, which is the amount of personal property that inmates may possess. Simmonds had a cell storage bin

— a “footlocker”

— that measured three cubic feet , and his legal materials too k up two

- thirds (two cubic feet) of his footlocker. All of Simmonds’s nonlegal, personal property would fit in the one cubic foot of remaining space in his footlocker . Simmonds also had personal hygiene items ( his “ shelf ” items) that TDCJ rules allow to be stored on a cell shelf; they did not have to be stored in the footlocker, but they too would have fit in the remaining one cubic foot of space.
I n September of 2005, in anticipation of the next shakedown, Simmonds in quired
of McLeod if Simmonds needed to obtain an extra storage container for the extra one cubic foot of legal materials that he would need available s o that his other cubic foot ofSimmon ds v. TDCJ Page 3

legal materials and one cubic foot of personal property would fit in the two

- cubic

- feet TDCJ sizing bin. 1 McL eod told Simmonds that he would not be issued an additional container for his legal materials because all of Simmonds’ s property, other than his shelf items, would fit in Simmonds’s footlocker. Simmonds also asked, and was told by McLeod, that in a shaked own, Simmonds would not have to put his lega l materials in the sizing bin. Simmonds alleged that i n the March 15, 2006 shakedown, the inmates were required to take all of their personal property to a gym for inspection and measuring.
Simmonds had all of his personal property that would have to fit in the sizing bin in a red mesh bag. All of his shelf items were in a pillow case so they could be set aside and not placed in the sizing bin, and all of his legal materials were in two red mesh bags so
that th ey too could be set aside. Simmons and Castleberry required Simmonds to place all of his property in the sizing bin, and because Simmonds’s legal materials were most important to him, he put those in first. A fter the sizing bin had been filled with
Simmo nds’s legal materials, all of Simmonds’s other personal property, 2 including his
shelf items and his B ible, which Simmonds alleged was exempt from having to fit in his footlocker, were confiscated as excessive property. When Simmonds told Simmons and
Cast leberry that the shelf items were not required to be stored in his footlocker and should not go in the sizing bin , he was asked, “Do you see any shelves in here [ i.e. , in

1 It is unclear from the record whether Simmonds formally requested another storage container.

2 Simm o nds’s shelf items consisted of items such as deodorant, shampoo, and nail clippers, and his other personal property consisted of miscellaneous items such as a dictionary, pens, a bowl, typewriter ribbon cassettes and printing wheels, and an electric razor ( which Simmonds says the rules do not require be ing stored in the footlocker container)

. He valued the confiscated personal property at $438.20.Simmon ds v. TDCJ Page 4

the gym]?”
Simmonds further alleged that he had filed a suit in February 2006 agains t TDCJ
officials and that the property confiscation that occurred a month later was in retaliation
for this new suit and is thus actionable under 42 U.S.C. § 1997d. Simmonds also alleged that, before the next shakedown, he received a yellow mesh bag for h is legal materials, and it was explained to him that the legal materials that he place d in the yellow mesh bag would not have to be placed in the sizing bin. In that next shakedown, Simmonds said that he did not have to place his legal materials in the si zing bin, nor did he have to place his shelf items in the sizing bin. Simmonds a sserted that this occasion was an admission that the prior confiscation of his property was unlawful. O’Reilly, the Warden, signed Simmonds’s Step 1 Grievance relating to th e confiscation , and Roddey, a grievance investigator, signed his Step 2 Grievance. Procedural Background Simmonds filed the instant lawsuit pro se , along with his pauper’s affidavit with inmate account statement, affidavit relating to previous filings, aff idavit relating to exhaustion of administrative remedies, and affidavit relating to the value of confiscated
item s. The district clerk issued a bill of costs for the $207 filing fee, and the trial court entered an order pursuant to section 14.006 of the C ivil Practice and Remedies Code
order ing payment of those costs from Simmonds’s inmate account. The trial court also entered an order directing the clerk to forward all of Simmonds’s filings to the Attorney General’s Law Enforcement Defense Division and directed the Attorney General to review the filings and, as amicus curiae , advise the trialSimmon ds v. TDCJ Page 5

court if Simmonds’s filings complied with chapter 14 of the Civil Practice and Remedies Code. The Attorney General filed a reply as amicus curiae and, other than asserting that Simmonds’s claims were frivolous, did not note an y noncompliance with Simmonds’s filings. The Attorney General then filed an answer for all the defendants.
T he defendants filed a motion to dismiss under chapter 14, alleging that
Simmonds’s suit was frivolous. An amended motion was filed, and attached were unauthenticated copies of TDCJ offender property rules and excerpts from the offender
orientation handbook. T he trial court held a hearing on the amended motion , granted
it , and entered an order dismissing the action as frivolous under chapter 14. Simmonds appeals, asserting eight issues in his original brief and an additional issue in a supplemental brief that he was given leave to file. Chapter 14 Frivolousness Dismissal In his first issue, Simmonds asserts that the trial court erred in dismissing his action as frivolous under chapter 14.

Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds tha t the claim is frivolous or malicious. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 14.003(a)(2). In determining whether the claim is frivolous or malicious, the trial court may consider whether (1) the claim’ s realistic chance of ultimate success is slight; (2) t he claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b).

. . . The Texas Supreme Court has expressed doubt about whether a trial court can properly dismiss a suit only because the claim ’ s realistic chance of ultimate success is slight or because it is clear that the party cannot prove facts in support of the claim. Johnson v.Simmon ds v. TDCJ Page 6 Lynaugh, 796 S.W.2d 705, 706

- 07 (Tex. 1990). Practically speaking, therefore, the trial court is limited to determining whether the claim has an arguable basis in law or fact. Bohannan v. Texas Bd. of Criminal J ustice, 942 S.W.2d 113, 115 (Tex. App.

— Austin 1997, writ denied). Smith, 33 S.W.3d at 340; see also Spurlock, 88 S.W.3d at 736.

... The issue of whether there was an arguable basis in law is a legal question that we review de novo. Id

. ; Moreland v. Jo hnson, 95 S.W.3d 392, 394 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). To determine whether the trial court properly decided there was no arguable basis in law

... , we examine the types of relief and causes of action

... to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Johns, 2005 WL 428465, at *1; Spurlock, 88 S.W.3d at 736. W e review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by law yers. Spurlock, 88 S.W.3d at 736 (citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.

— Houston [1st Dist.] 1993, writ denied) ). Also, i n reviewing the dismissal

... , we are bound to take as true the allegations in his petition. Jackson v. Tex. Dep’t C rim. Justice

- Inst. Div., 28 S.W.3d 811, 813 (Tex. App.

— Corpus Christi 2000, pet. denied)

. Brewer v. Simental, 268 S.W.3d 763, 769

- 70 (Tex. App.

— Waco 2008, no pet.). A claim has no arguable basis in law if it is an indisputably meritless legal theory. Le achman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.

— Fort Worth 2008, no pet.)

. We find no case law on what it means for a claim to have “ no arguable basis in
fact ” under subsection 14.003(b) (2)

. 3 We thus turn to case law under Rule 13 , which

3 The am ended motion to dismiss sought dismissal of Simmonds’s action because none of his claims have an arguable basis in fact or law. The trial court’s dismissal order does not state the frivolousness reason ( i.e. , no arguable basis in fact, or no arguable basi s in law) for its dismissal. The trial court held a hearing in which Simmonds was present. The Assistant Attorney General argued the amended motion to dismiss for the defendants. Simmonds argued against dismissal and factually explained his claims and a nswered a few questions from the trial court, but he was not sworn in and did not formally testify, nor was he cross - examined by the defendants’ attorney. Also present at the hearing for the defendants was John Patrick, a TDCJ supervisor. Patrick spoke i n the hearing and answered questions from the trial court, but he too was not sworn in and did not formally testify, nor was he cross

- examined by Simmonds. Despite the unsworn, informal testimony, we find that the trial court conducted a fact hearing on t he amended motion to dismiss.Simmon ds v. TDCJ Page 7

authorizes a tri al court to impose sanctions against an attorney, a represented party, or both, who file a groundless pleading brought in bad faith or brought for the purpose of
harassment. T EX
. R. C IV
. P . 13. Rule 13 defines “groundless” as having “no basis in law
or f act and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id. In that inquiry, t he trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the
p leading. Alejandro v. Bell, 84 S.W.3d 383, 392 (Tex. App.

— Corpus Christi 2002, no pet.). The trial court uses an objective standard to determine if a pleading was groundless: did the party and counsel make a reasonable inquiry into the legal and factual basis of
the claim? In re United Servs. Auto Ass’n, 76 S.W.3d 112, 115 (Tex. App.

— San Antonio 2002, orig. proceeding). We review Rule 13 groundlessness for abuse of discretion. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A clear failure by the trial court to analyze or apply the law correct ly is an abuse of discretion. Leachman, 261 S.W.3d at
304

. Simmonds’s live pleading alleged the following causes of action against TDCJ: a
claim under the Texas Tort Claims Act and a request for indemni fication under subsection 104.002(a)(2) of the Civil Practice & Remedies Code for his claims against the
individual defendants. Simmon d s alleged the following causes of action against the individual defendants: fraud (and statute of frauds); detinue; con version; fraudulent
After the hearing, Simmonds filed an objection to Patrick’s unsworn testimony. In issue eight, Simmonds complains that the trial court should not have allowed Patrick’s unsworn testimony and that we should not consider it in this appeal. Simmonds’s objection was untimely, and it was apparent that Patrick was presenting evidence. See T EX

. R. A PP
. P. 33.1(a); Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) ( opponent of testimony can waive oath requirement by failing to objec t when opponent knows or should know that objection is necessary ). We overrule issue eight.Simmon ds v. TDCJ Page 8

conversion; trespass to chattels; trespass to personal property; conspiracy; replevin; violation of Texas Theft Liability Act; and violations of 42 U.S.C. §§ 1983 and 1997d.
Texas Tort Claims Act : Simmonds asserts a claim against the T DCJ under the Texas Tort Claims Act, alleging that he has suffered personal injury (pain and suffering
from having to handwrit e with arthritic hand and fingers) as a result of Simmons and Castleberry’s confiscation of his typewriter ribbons and printing wh eels through the use of the sizing bin , which is tangible personal property

. See T EX
. C IV
. P RAC
. & R EM
. C ODE
A NN
. § 101.021(2) (Vernon 200 5 ) (“A governmental unit in this state is liable for: ... personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. ”).
From Simmonds’s pleadings and brief, it is clear that he alleges an intentional tort by Simmons and Castleberr y in th e confiscation of these items. 4 On e of the Act’s exceptions from its limited waiver of immunity is the intentional

- tort exception: the Act does not apply to a claim “arising out of assault, battery, false imprisonment, or any
other intentional tor t,

... .” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.057(2) (Vernon
200 5 ) ; see City of Waco v. Williams, 209 S.W.3d 216, 221

- 22 (Tex. App.

— Waco 2006, pet. denied). Because the State has not waived sovereign immunity as to Simmon ds’s claim
under the Texas Tort Claims Act, th at claim has no arguable basis in law or in fact, and
the trial court did not err or abuse its discretion in dismissing it as frivolous.

4 “The proximate cause of Mr. Simmonds’ injury arises through and under his claim that Appellees had perpetrated a fraud, and it was through the use of both bins that the fraud was completed ... .” (Simmonds Brief at 8).Simmon ds v. TDCJ Page 9

Indemnification under subsection 104.002(a)(2) : Simmonds seeks recovery of his section 1983 damages unde r subsection 104.002(a)(2), which provides for the State’s
indemnification of State employees and contractors identified in section 104.001 who have had damages assessed against them. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 10 4 .0 01 (Vernon Supp. 2009) , § 1 04 .002 (Vernon 200 5 )

. Simmonds is not a person who is
entitled to such indemnification ; i.e. , chapter 104 is not a vehicle for Simmonds to recover damages

. See id. ; Montana v. Patterson, 894 S.W.2d 812, 815 (Tex. App.

— Tyler 1994, no writ). Because Simmo nds cannot recover damages under subsection 104.002(a)(2), his theory of relief under it has no arguable basis in law or in fact, and the
trial court did not err or abuse its discretion in dismissing it as frivolous.
Fraud : Simmonds claims that McLeod com mitted fraud 5 by misrepresenting to him that he would not have to put his legal materials in the sizing bin and that he thus
did not need another storage container in his cell

. The elements of fraud are: (1) a

ma terial representation was made; (2) the re presentation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the trut h and as a positive assertion; (4) the speaker made the representation with the intent that the o ther party s hould act on it; (5) the party acted in

r eliance on the representation; and (6) the p arty thereby suffered injury. Long v. Tanner, 170 S.W.3d 752, 754 (Tex. App.

— Waco 2005, pet. denied ). Simmonds’s petition and brief indicate that he had no choice regard ing McLeod’s (or Simmons and

5 Simmonds ’s petition mentions the “statute of frauds,” an established affirmative defense ( see T EX

. R. C IV
. P. 94; T EX

. B US

. & C OMM

. C ODE A NN
. § 2 6 .01 (Vernon 200 9 )), in the litany of his causes of action. To the extent he asserts a cause of action under the statute of frauds, it has no arguable basis in law or in fact, and the trial court did not err in finding it to be frivolous.Simmon ds v. TDCJ Page 10

Castleberry’s) 6 representations about Simmonds’s property and whether he needed or
could have another container , so we agree with the State that he cannot establish that he acted in reliance on any possible misrepr esentation. His fraud claim has no arguable
basis in law or in fact, and the trial court did not err or abuse its discretion in dismissing
it as frivolous. Simmonds asserts that O’Reilly and Roddey are liable for fraud because they were notified of McLeod’s allegedly fraudulent conduct in the grievance process and did nothing to correct the harm. Simmonds does not plead or show that they can be liable to him for fraud in failing to correct the alleged fraud and harm. Thu s , his

assert ion has no arguable basis in law o r in fact as a fraud claim, and the trial court did

not err or abuse its discretion in dismissing it as frivolous. Conspiracy : Simmonds claims that all of the individual defendants conspired to
unlaw fully confiscate his property or to defraud him of his p roperty. It is undisputed
that all of these individuals , except Roddey, were TDCJ employees or officials at the
Huntsville Unit

. Because they were employees or officials of the same unit at the time of the alleged conspiratorial acts, they were members o f the same collective entity and could not have conspired with each other as a matter of law

. See Brewer, 268 S.W.3d at
773

- 74. As for Roddey and her role in the alleged conspiracy, Simmonds has not pleaded any facts (he has only made conclusory allegati ons that she acted with the others in refusing to deal with the unlawful confiscation and to return Simmonds’s

6 Simmonds’s brief explains that Simmons and Castleberry’s fraud li ability occurs because of their participation in a conspiracy to defraud him of his property because they did not handle his legal materials in the way that McLeod said they would. The disposition of that aspect of his fraud claim is included with our dis position of his conspiracy claim.Simmon ds v. TDCJ Page 11

property). Simmonds has failed to allege sufficient facts to support a conspiracy claim involving Roddey. See Leachman, 261 S.W.3d at 314; cf. Vacca v. Farrington, 85 S.W.3d 438, 439

- 42 (Tex. App.

— Texarkana 2002, no pet.). The conspiracy claim has no arguable
basis in law or in fact, and the trial court did not err or abuse its discretion in dismissing
it as frivolous.
Conversion : Simmonds alle ges that all the individual defendants converted his personal property.

To establish conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defenda nt unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or i nconsistent with, the plaintiff’ s rights as an owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v. Deat on , 939 S.W.2d 146, 147

- 48 (Tex. 1997); Apple Imports, Inc. v. Koole , 945 S.W.2d 895, 899 (Tex. App.

— Austin 1997, pet. denied). If the defendant originally acqui red possession of the plaintiff’ s property legally, the plaintiff must establish that the defe ndant refused to return the property after the plaintiff demanded its return. Presley v. Cooper , 284 S.W.2d 138, 141 (Tex. 1955); Apple Imports , 945 S.W.2d at 899. Lopez v. Lopez, 271 S.W.3d 780, 784 (Tex. App.

— Waco 2008, no pet.) ; see Mitchell v. Tex. Dep’t Crim. Just

. , No. 06

- 04

- 00130

- CV, 2005 WL 486389, at *2 (Tex. App.

— Texarkana Mar. 3, 2005, no pet.). Simmonds alleges that Simmons and Castleberry wrongfully confiscated, and thus converted, his personal property in the shakedown. He alleges that O’ Reilly, McLeod, and Roddey are liable for conversion because they refused his demands to return his personal property. Simmonds makes no legal or factual showing that McLeod and Roddey, who are investigators, have the power or duty to returnSimmon ds v. TDCJ Page 12

wrongfully co nfiscated property. Accordingly, his conversion claim against McLeod and Roddey has no arguable basis in law or in fact, and the trial court did not err in finding it to be frivolous. As for O’Reilly, we assume without deciding that a prison
warden does have the power or duty to return wrongfully confiscated property, and to the extent that Simmonds’s conversion claim is not frivolous, as discussed below, it is not frivolous as to O’Reilly. See Mitchell, 2005 WL 486389, at *2 (holding that inmate’s

conve rsion claim against warden was not frivolous). Simmonds’s confiscated prope rty falls into three categories : (1) shelf items; (2) miscellaneous personal property; and (3) typewriter. We will address each category separately. Regarding the shelf items, S immonds asserted that they were not required to be stored in his container and thus were not required to be placed in the sizing bin to determine if Simmonds had excess property. In the dismissal hearing, Patrick acknowledged to the trial court that the o ffender property rules do not require the shelf items to be placed in the sizing bin. T hose rules state that “one (1) each of personal hygiene items may be stored on the shelf, if available ” and except the shelf items from the requirement that “the total volume of an offender’s property must be placed in the closable storage container.” Also excepted are non

- combustible items such as electrical appliances, and we agree with Simmonds that his confiscated electric razor falls within this exception. 7 Finall y, Simmonds pleaded that in a subsequent shakedown, he was

7 Simmonds also claims that his B ible was excepted from the property rules requirement that it must be stored in his container, but he does not cite a specific rule, nor do the defendants address it. While we find that th e rules and offender orientation handbook allow an offender to possess one religious text, we do not find that its storage is addressed in either document. In any event, his Bible’s confiscation also falls within the category of miscellaneous personal pro perty, which we address next.Simmon ds v. TDCJ Page 13

not required to place his shelf items in the sizing bin. We find that Simmonds’s claim
for conversion of his shelf items has an arguable basis in law and in fact, and the trial

court erred or abus ed its discretion in concluding otherwise. Regarding Simmonds’s miscellaneous personal property that was confiscated because Simmond’s legal materials completely filled the sizing bin in the shakedown, the rules provide that an offender can request and is entitled to receive an additional storage container for his legal materials if his first container is totally filled with legal materials and a “reasonable amount” of other personal property items, with a reasonable amount defined as not exceeding one

- hal f of the available space in the first
container. Simmonds asserted in his petition and in the hearing that his personal property took up one

- third of the space in his container and his legal materials took up

two

- thirds of the space. Legal materials are treated separately in the property rules, and nothing in the rules includes legal materials as part of an offender’s allowed two cubic feet of personal property , which of course is explainable because offenders can be entitled to additional storage for the ir legal materials . Furthermore, Simmonds pleaded that in a subsequent shakedown, he was not required to place his legal materials in the sizing bin. We find that Simmonds’s claim for conversion of his miscellaneous personal property has an arguable basi s in law and in fact, and the trial court erred or abused its
discretion in concluding otherwise. Simmonds’s typewriter was confiscated because Simmonds had placed contraband ( “white

- out” correction fluid and “scotch” tape) in it. Simmonds concedes
that those items were contraband and were properly confiscated, but he claims that noSimmon ds v. TDCJ Page 14

rule allowed for the typewriter’s confiscation. He says that he placed the contraband in the typewriter not to hide it, but to store it in the most sensible place for it beca use he only use d the white

- out when he typed. The property rules state that contraband is to be confiscated and defines contraband as “altered, out

- of

- place, or excesses of authorized property; and any item which an offender is prohibited to possess or ob tain while in custody, unless received by the offender as the result of a State or Federal court order or legitimately through the litigation process.” Contraband is also defined in the handbook as any “item used to violate a TDCJ rule.”
The defendants a rgue that the typewriter was properly confiscated as contraband , and thus was not converted, because Simmon ds used it to hide contraband and it thus was an item used to violate a TDCJ rule. This argument is akin to Texas forfeiture law, which provides for the forfeiture of contraband, which generally means property “used in the commission ” or “used or intended to be used in the commission”
of various enumerated felonies. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 59.01(2)(A, B) (Vernon Supp. 200 9 ). However, we cannot agree at this point with the defendants’ argument because the handbook’s definition is not unambiguous and we cannot say as
a matter of law that the typewriter was an item “used to violate a TDCJ rule.” 8
M oreover, Simmonds’s factual explanation for why the contraband was in his

8 In his “omnibus reply ” to the defendants’ pleadings, Simmonds alleged that other inmates stored their whiteout in their typewrite r s, but in the shakedown, their typewriters were not seized.Simmon ds v. TDCJ Page 15

typewriter gives his conversion claim an arguable basis in fact. 9 We find that Simmonds’s claim for conversion of his typewriter has an arguable basis in law and in fact, and the trial court erred or abuse d its discretion in concluding otherwise.
Detinue , Trespass to Chattels, Trespass to Personal Property , Theft Liability Act, and Replevin : Based on the same facts as those for his conversion claim, Simmonds asserts

common - law cause s of action for detinue , t respass to c hatt els, t respass to p ersonal
p roperty , and replevin , and a statutory claim under the Theft Liability Act

.

At common law when a defendant unlawfully detained property from a plaintiff, the plaintiff might sue him either in detinue or trover. If he sued in detinue it was because he desired to recover his property together with damages for its unlawful detention. If he sued in trover it was because he elected to treat the detention as a conversion of the property by defendant, whereby the title thereto passe d to defendant as of the time of the conversion, and he recovered the value of the property at the time it was converted. Hankey v. Employer’s Cas. Co., 176 S.W.2d 357, 360

- 61 (Tex. Civ. App.

— Galveston 1943, no writ). An action for trespass to chattels i s similar to conversion but differs in the measure of damages recoverable. O’C ONNOR ’ S T EXAS C AUSES OF A CTION 159 (2008 ) . On a trespass to chattels claim, the plaintiff can recover only the diminished value of his property and the damage to his interest i n its possession or use. Id. (citing R ESTATEMENT

9 The handbook also defines contra band as an “item altered from its original condition.” The amended motion to dismiss argued that the typewriter was altered from its original condition to accommodate the contraband, but the defendants presented no evidence that is was altered, and Simmon ds disputes that it was altered, stating that he merely placed the white

- out and tape inside the typewriter. Contraband is also defined in the handbook as items “stored in an unauthorized manner.” The motion also asserted that the typewriter was stored i n an unauthorized manner, “as a means to hide contraband.” Simmonds disputes this argument too, arguing that the contraband was stored in the typewriter and that the typewriter itself was not improperly stored in his cell. Simmonds thus presents an argua ble basis in law and in fact for why these other arguments do not necessarily result in the typewriter being contraband.Simmon ds v. TDCJ Page 16

(2 D ) OF T ORTS § 222A comt. c)) ; see Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 395 (Tex. App.

— Houston [14th Dist.]

. 2004), rev’d on other grounds, 184 S.W.3d 707 (Tex. 2006). An act ion for trespass to personal property, or personalty, “ is an unlawful injury to, or interference with, possession, with or without the exercise of physi cal force.” Jamison v. Nat’l Loan Investors, L.P., 4 S.W.3d 465, 469 n.2 (Tex. App.

— Houston [1 st Dist.] 1999, pet. denied). A statutory civil action for theft of personal property exists, the difference with a conversion action being the defendant’s intent to deprive the plaintiff of the property and additional damages. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§ 1 3 4.003(a) , 1 3 4.00 5 (a) (1) (Vernon 2005 ); T EX
. P EN
. C ODE A NN
. § 31 .03(a) , (b) (Vernon Supp. 200 9 )

. Conversion does not require proof of wrongful intent to deprive. O’C ONNOR ’ S T EXAS
C AUSES OF A CTION 871 (2008 )

. While Simmonds’s claim s for detinue, t r espass to c hattels, t respass to p ersonal
p roperty , and theft liability are largely duplicative of his conversion claim, we find that they have an arguable basis in law and in fact for the same reasons as his conversion
claim , and the trial court erred or a bused its discretion in concluding otherwise. Replevin is an “action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.” B LACK ’ S L AW D ICTIONARY 1302 (7th ed. 1999); see, e.g., Seureau v. Mudd, 515 S.W.2d 746 (Tex. Civ. App.

— Houston [14th Dist.] 1974, writ ref’d n.r.e.). While Simmonds appears to not have given security for the property whose return he seeks, he still could . B ecause we have held that Simmonds’sSimmon ds v. TDCJ Page 17

conversion

- related claims are not frivolous, we hold that his action for replevin , while not sustainable in the absence of Simmonds giving security, is not frivolous on its face,
and the trial court erred or abu sed its discretion in concluding otherwise.
Section 1983 : Simmonds alleges a section 1983 action against the individual
defendants (O’Reilly, Roddey, Simmons, and Castleberry) in their individual capacities for violating his right to due process in the confiscation of his typewriter by applying a
nonexistent property rule and by confiscating his typewriter as punishment in lieu of charging him with a disciplinary case and having a disciplinary hearing relating to his possession of the typewriter as contr aband

. 10 Section 1983 provides a cause of action and remedy when any “ person ” acting under color of state law deprives another of rights, privileges, or immunities protected by the U.S. Constitution or laws. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.

— Beaumont 1999, pet. denied) (citing Thomas, 960 S.W.2d at 109 ). A section 1983 action will lie against state officials in their per sonal or individual capacities. Id. Brewer, 268 S.W.3d at 770.
In their amended motio n to dismiss and at the hearing , t he defendants argued that they followed TDCJ rules in confiscating Simmonds’s property and that the grievance system afforded him due process, noting the application of the

10 Simmonds also asserts that Roddey “may” have violated his due process right by reviewing his Step 2 grievance when he was already sui ng her in a separate lawsuit. Simmonds provides no authority for this part of his section 1983 claim, and he also failed to exhaust his administrative remedies by filing a separate grievance over Roddey’s alleged impropriety. See T EX

. C IV
. P RAC

. & R EM
. C ODE A NN . § 14.005 (Vernon 200 2 ); Leachman v. Dretke, 261 S.W.3d 297, 304, 308 , 311 (Tex. App.

— Fort Worth 2008, no pet.) (i f inmate fails to exhaust administrative remedies, appellate court may affirm dismissal even if ground was not presented in motion to dismiss) ( a llegations of reprisals by TDCJ employees against inmates for filing grievances or lawsuits, or other inmate complaints about TDCJ employee actions, are subject to grievance procedure)

. For these reasons, the trial court did not err in dismissi ng this part of Simmonds’ s section 1983 claim.Simmon ds v. TDCJ Page 18

Parratt/Hudson 11 doctrine

. Under the Parratt/Hudso n doctrine, “a deprivation of a co nstitutionally protected property interest caused by a state employee's random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy.” Zinermon v. Burch, 494 U.S. 113, 115, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Conduct is not “random and unauthorized” for purposes of the Parratt/Hudson doctrine if the state “delegated to [the defendants] the power and authority to effect the very deprivation complained of.” Zinermon, 494 U.S. at 138, 110 S.Ct. 975. Allen v. Thomas, 388 F.3d 147 , 149 (5th Cir. 2004). In Allen , the Fifth Circuit addressed a
similar due process claim relating to the confiscation of an inmate’s property and held that, because the items were co nfiscated under the authority of a prison administrative directive, the confiscation was not a random, unauthorized act by a state employee and
that the Parratt/Hudso n doctrine thus did not apply. Id. For the same reason, we hold
that the Parratt/Hudso n doctrine does not apply and that , based on the meager record before us, Simmonds’s section 1983 claim against O’Reilly, Roddey, Simmons, and Castleberry has an arguable basis in law and in fact and should not have been
dismissed as frivolous. Cf. Allen v. Thomas, No. H

- 02

- 3132, 2005 WL 2076033 (S.D. Tex. Aug. 26, 2005) (granting summary judgment on inmate’s due process claim after discovery taken and with detailed analysis of evidence and law).
Section 1997d : Simmonds ’s brief does not address at all his claim for an alleged violation of 42 U.S.C. § 1997d

. By not briefing it, Simmonds has waived any complaint
about its dismissal by presenting nothing for review

. See Strange v. Continental Cas. Co.,

11 Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 328 , 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).Simmon ds v. TDCJ Page 19

126 S.W.3d 676 , 678 (Tex. App.

— Dallas 2004, pet. denied) ; T EX
. R. A PP
. P. 38.1 (g), (h). In conclusion, except for Simmonds’s conversion claim and related claims (detinue, replevin, trespass to personal property and to chattels, and statutory theft liability) and his section 1983 claim (except as to his additi onal claim against Roddey) , the trial court did not abuse its discretion or err in dismissing Simmonds’s claims as frivolous. We sustain in part and overrule in part Simmonds’s first issue, and these claims will be remanded for further proceedings.
Other Issues In his second issue, Simmonds claims that the trial court erred in refusing to file findings of fact and conclusions of law, despite Simmonds’ s request that was prematurely filed and thus deemed filed on the day of, but immediately after, the signi ng of the dismissal order. See T EX
. R. C IV
. P. 306c. Simmond s , however, did not file a notice of past

- due findings and conclusions, and even if we were to agree that findings and conclusions were required, Simmonds has no t preserved his right to complain about the trial court’s failure to file findings and conclusions. See T EX
. R. C IV
. P. 297; Gaxiola v. Garcia, 169 S.W.3d 426, 429 (Tex. App.

— El Paso 2005, no pet.)

. We
overrule issue two. In issue three, Simmonds asserts that the trial court erred by n ot acting on his motion to modify , correct, or reform the judgment. That motion, however, was overruled by operation of law. See T EX
. R. C IV
. P. 329b(c). Moreover, our disposition of issue one resolves Simmonds’s complaint. Issue three is overruled.
Si mmonds’s fourth issue asserts that the trial court erred in sending him a noticeSimmon ds v. TDCJ Page 20

under sub sections 14. 007(a) and 14.011(a) that, because this case had been dismissed as frivolous, Simmonds could not file another claim until he paid the fees and costs

asses sed in this case. We addressed this issue in an original proceeding brought by Simmonds, holding in his favor that, because this appeal was pending, “subsection 14.011(a) does not allow a clerk or trial court to refuse to accept for filing another claim
b y an inmate until the inmate has exhausted or waived his appeal of the dismissal order at issue in the subsection 14.007(a)(2) finding.” In re Simmonds, 271 S.W.3d 874, 883 (Tex. App.

— Waco 2008, orig. proceeding). Accordingly, we overrule issue four.
As previously noted, the trial court directed the clerk to forward Simmonds’s filings to the Attorney General’s office and directed it to review the filings and, as
amicus curiae , file “an advis ory” with the trial court as to whether Simmonds’s filings compl ied with chapter 14. The Attorney General’s amicus curiae reply asserted that Simmonds’s claims were frivolous, but did not note any chapter 14 noncompliance

. The amicus curiae reply begins by stating that it is being filed by the Office of the Attorney General, as amicus curiae , but the attorney’s signature block identifies the Attorney General and his listed assistants as attorneys for the defendants. Thereafter, the Attorney General’s office appeared and answered as counsel for the defendants.
After the filing of the amicus curiae reply, Simmonds filed a motion that included an objection to the reply’s status as an amicus curiae filing.
I n his fifth issue, Simmonds complains that the trial court abused its discretion in allowing the Attorney General’ s office to appear as amicus curiae when it represents the defendants in the same action and always represents the defendants in inmate litigationSimmon ds v. TDCJ Page 21

against TDCJ officials and employees. We agree with Simmonds’s assertion that the
status of the Office of th e Attorney General ’s reply was not that of a true amicus curiae , 12
but Simmonds did not seek relief in the trial court . O n appeal , he seeks no relief for the reply’s filing, nor can he show reversible error. See T EX
. R. A PP
. P. 44.1. We thus
overrule iss ue five. In the same order requesting an amicus curiae advisory, the trial court requested the Attorney General to obtain authority to represent the defendants and answer on their behalf. If the Attorney General could not locate a defendant or secure a
d efendant’s authorization, a statement or affidavit of the defendant’s last known
address was to be filed ex parte and under seal, subject to the plaintiff’s motion to unseal for good cause. Not knowing the correct identity of defendant Captain Kenneth N. Simmons, Simmonds initially named Sergeant Kevin D. Simmons as a defendant. After Simmonds filed an amended petition that named Kenneth N. Simmons as the proper defendant and omitted Kevin D. Simmons as a defendant, the Attorney General filed a
motion to dismiss Kevin D. Simmons (Kenneth’s brother) as a n improper party , which
the trial court granted at the hearing on the amended motion to dismiss the suit as
frivolous. 13

12 “A true amicus curiae is without interest in the proceeding in which he appears. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120

- 21 (Tex. 1957). He is a ‘bystander’ whose mission is to aid the court to act o nly for the personal benefit of the court. Id. ” In re Wingfield, 171 S.W.3d 374, 381 (Tex. App.

— Tyler 2005, orig. proceeding).

13 By Simmonds’s naming Kenneth N. Simmons as a defendant in his amended petition, Kenneth N. Simmons was made a party. See Re ynolds v. Haws, 741 S.W.2d 582, 588

- 89 (Tex. App.

— Fort Worth 1987, writ denied). Simmonds’s later motion to add Kenneth N. Simmons as a party was thus unnecessary. The omission of Kevin D. Simmons as a defendant in the amended petition effectively dismis sed him as aSimmon ds v. TDCJ Page 22

In a “motion requesting unsealing of affidavits, ” Simmonds allege d impropriety by the Assistant Attorney General who initially reviewed Simmonds’s filings because that attorney should not have failed to immediately disclose that Simmonds had named
the incorrect Simmons as a defendant. Simmonds requested the trial court to take appropriate action as to the attorney’s alleged misconduct and also requested the trial
court to unseal the statement or affidavit of defendants’ last know n addresses so that Simmonds could learn the identity of the attorney who filed it and how Kevin D.
Simmons was i dentified. Issue six asserts that the “trial court abused its discretion by not taking appropriate action when evidence had been presented establishing wrongdoing and misconduct” of the defendants’ attorneys. Issue seven asserts that the trial court abus ed its discretion in failing to grant Simmonds’s motion to unseal the affidavits. Simmonds, however, did not request and obtain a ruling denying this motion, and he therefore failed to preserve these complaints for appellate review. See T EX
. R. A PP
. P. 3 3.1(a); Hull v. Davis, 211 S.W.3d 461, 466 (Tex. App.

— Houston [14th Dist.] 2006, no pet.). We
overrule issues six and seven. Simmonds’s supplemental issue, which the defendants did not respond to, asserts that the trial court erred by assessing costs aga inst Simmonds for subpoena and
service fees when there had no t yet been a finding under section 14.007 and Simmonds

party. See Woodruff v. Wright, 51 S.W.3d 727, 731 (Tex. App.

— Texarkana 2001, pet. denied). His motion to have him dismissed as an improper party thus was also unnecessary. At the frivolousness dismissal hearing, the defendants’ attorney not ed that Kenneth N. Simmons had been listed as a party but had not been served, and the trial court informed Simmonds that he needed to get him served. That was not accomplished.Simmon ds v. TDCJ Page 23

had not yet had a previous action dismissed as frivolous. We noted this issue in Simmonds’s mandamus proceeding. See Simmonds, 271 S.W.3d at 880 & n.4. Simmonds, however, did not raise this issue in the trial court and request and obtain a ruling on it . He has therefore failed to preserve his complaint for appellate review. See
T EX
. R. A PP
. P. 33.1(a). We overrule his supplemental issue. In conclusion, having sustained in part Simmonds’s first issue, we reverse in part
the trial court’s order dismissing Simmonds’s suit as frivolous and remand this case for further proceedings. We otherwise affirm the trial court’s dismissal order.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna , and Justice Davis (Chief Justice Gray concurs in part and dissents in part with a note)* Affirmed in part, reversed and remanded in part Opinion delivered and filed February 24 , 2010 [C V06] *( Ch ief Justice Gray concurs in part and dissents in part. A separate opinion will not issue. He provides, however, the following note. When any litigant buries what a majority of this Court has now finally determined is a legally and factually arguable cla im amongst numerous unfounded claims , I do not believe the trial court errs in dismissing the entire suit as frivo lous. It has taken the Court 23 pages of detailed analysis to wade through the plaintiff’s claims and the Court has determined that almost al l of the plaintiff’s claims have no basis in law or fact. I do not believe that a trial court is obligated to attempt such an endeavor. And I do not believe that we are obligated to engage in such an endeavor as part of our review of the trial court’s ju dgment in search of an arguable claim, particularly when the statute expressly provides that the trial court may dismiss a claim if its realistic chance of success is slight

. There are numerous analogous situations in the law in which it is held that t he litigant has waived their objection or claim. For example if a litigant makes numerous unfounded objections that serve only to obfuscate or hide a potentially valid objection, it is held that the litigant has waived his potentially proper objection. Like wise , if aSimmon ds v. TDCJ Page 24

litigant offers for introduction into evidence both admissible and in admissible evidence en - mass, and the trial court overrules an objection to the introduction of the evidence, it is the objecting litigant’s burden to identify, separate, and ob ject to only the in admissible evidence or the objection is waived even if some part of the evidence was not admissible

. As a further example, if an appellant makes no reference or only a general reference to the record for evidence supporting an argument the appellate court is not obligated to scour the appellate record for such evidence even if that evidence , if found in the record , would require the appellate court to reverse a summary judgment. I believe this is an analogous situation. The Court’s opi nion represents an enormous investment of the State’s resources in identifying what is essentially one claim with only an arguable factual basis, and that claim is hidden by duplication via the use of archaic labels. I would not have engaged in searching for such an illusive creature. And I do not believe that even the allegations identified by the majority will support a claim. But anything further that I write on this, even the addition of citations for the legal propositions referred to herein, is jus t a further expenditure of State resources on what I believe is already a frivolous claim that the majority has determined must be remanded to the trial court. I would not. I would affirm the trial court’s judgment in its entirety. I join no part of the opinion, in particular that part that refuses to address whether the Court can properly ignore the portion of the statute that expressly provides that a suit can be dismissed because its realistic chance of success is slight without that determination hav ing first been made by the trial court, the proceeding dismissed by the trial court on that basis, and that dismissal having been properly challenged on the basis that it is a violation of the due process clause. The Court impliedly does this on behalf of Simmonds. I would not. Thus I concur in the Court’s judgment only to the extent that the Court affirms the trial court’s judgment of dismissal, but respectfully dissent to the reversal and remand of any part or portion of the trial court’s judgment. )