Jerry SANCHEZ, Timothy Wiliams, and Jose Estrada, Appellants v. James Daniel BOONE, Appellee

NO. 14-17-00981-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 16, 2019

**SUBSTITUTE OPINION**

Frances Bourliot, Justice

We deny the motion for rehearing filed by appellee James Daniel Boone. We withdraw our opinion dated March 19, 2019 and issue the following substitute opinion.

In this interlocutory appeal, Jerry Sanchez, Timothy Williams, and Jose Estrada (collectively, the officers), correctional officers for the Texas Department of Criminal Justice (TDCJ), challenge the trial court's denial of their plea to the jurisdiction, seeking dismissal of claims brought against them by inmate James Daniel Boone. Boone complains that the officers confiscated certain items from his cell and failed to return them. We conclude that the officers have shown their entitlement to official immunity as to Boone's claims involving one item but not the other items. Therefore, we lack jurisdiction over Boone's claims as to the former but not the latter. We dismiss in part and affirm in part.

***Background***

According to Boone, Williams and Estrada came into his cell and strip searched him. Boone alleges that a handmade dog tag and wedding band, among other things, were confiscated. Williams and Estrada told Boone to get dressed and step out of his cell. As he did so, Sanchez approached. Sanchez found a typewriter, "slammed it on the cell floor busting it open[,] ripped the top off," and found a cell phone charger hidden inside. Boone had another typewriter with SIM cards hidden inside.

Thereafter, Boone received disciplinary reports for possession of the cell phone charger and SIM cards as contraband. The property officer returned certain property to Boone along with an inventory sheet. The returned property did not include the second typewriter, the dog tag, or wedding band. Boone complained about his missing property and did not sign the inventory sheet. The property officer told Boone to file a "step-1 grievance" and took the property back to the property room. The property officer subsequently returned with the property, and Boone again refused to sign the inventory form. The property officer told him that he was signing only for the property he was receiving since he had already filed a grievance for the missing property. Boone then signed the form.

After exhausting his administrative remedies, Boone filed this lawsuit against the officers in their individual capacities, bringing a claim under the Theft Liability Act (the Act), and seeking damages for the confiscated typewriter, dog tag, and wedding band.1*See**530Tex. Civ. Prac. & Rem. Code §§ 134.001 -.005. The officers filed a plea to the jurisdiction, asserting sovereign immunity "[t]o the extent the petition names [the officers] in their official capacities" and official immunity as to the claims against the officers in their individual capacities.2 The trial court granted the plea "to the extent that [Boone] seeks recovery against the [officers] in their official capacities" but denied it "[t]o the extent [Boone] seeks recovery against [the officers] in their individual capacities."

***Discussion***

In two issues, the officers argue they are entitled to official immunity as to Boone's claims. Official immunity is an affirmative defense that protects government employees from personal liability. *Univ. of Houston v. Clark* , 38 S.W.3d 578, 580 (Tex. 2000). A governmental employee is entitled to official immunity for the performance of discretionary duties within the scope of the employee's authority when the employee acts in good faith. *Id.* Because official immunity is an affirmative defense, to prevail on a plea to the jurisdiction, the governmental employee must conclusively prove each element of the defense. *Id.* (applying standard to summary judgment motion); *see also**City of Dallas v. Brooks* , 349 S.W.3d 219, 225 (Tex. App.-Dallas 2011, no pet.) (applying standard to plea to the jurisdiction).

When a plea to the jurisdiction challenges the plaintiff's pleadings, we determine whether the pleadings, construed in the plaintiff's favor, allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction to hear the case. *Metro. Transit Auth. of Harris Cnty. v. Douglas* , 544 S.W.3d 486, 492 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (citing *Tex. Dep't of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 226 (Tex. 2004) ). If the plaintiff pleaded facts making out a prima facie case and the governmental unit instead challenges the existence of jurisdictional facts, we consider the relevant evidence submitted. *Id.* When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the plaintiff. *Id.* We indulge every reasonable inference and resolve any doubts in the plaintiff's favor. *Id.* We review a challenge to the trial court's subject matter jurisdiction de novo. *Id.*

**I. Arguments Specific to Handmade Items***531The officers contend in their first issue that (1) there is no evidence that Boone had possession of his handmade dog tag and wedding band at the time of the cell search or that the items were confiscated; and (2) the officers are immune from Boone's theft claims as to these items because the alleged amount of actual damages is insignificant. We conclude that we lack jurisdiction to consider these arguments because they are not based on the officers' assertion of official immunity.

We have jurisdiction over the interlocutory appeal of a plea to the jurisdiction under section 51.014(a)(5) of the Civil Practice and Remedies Code. *See* Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). That section provides that a person may appeal from an interlocutory order denying a plea to the jurisdiction "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."3*Id.* In this connection, we have held that under the statute, we have jurisdiction to consider only the interlocutory appeal of a challenge "based on the assertion of official immunity." *Baylor Coll. of Med. v. Hernandez* , 208 S.W.3d 4, 11 (Tex. App.-Houston [14th Dist.] 2006, pet. denied).4

The officers contend that there is no evidence that Boone had possession of the handmade items at the time of the cell search or that the items were confiscated. They contend that they "need not prove official immunity" because Boone lacks a claim to assert. This argument-based on the lack of evidence to support Boone's theft claim-is not an assertion of immunity. *See**id.* Therefore, we lack jurisdiction to address this issue. *See**id.*

The officers also contend for the first time on appeal that Boone's claims as to the handmade items are barred under the doctrine of *de minimus non curiat lex.* Under that doctrine, any error is deemed harmless when the amount of actual damages is insignificant. *See**Smith v. Stevens* , 822 S.W.2d 152, 152 (Tex. App.-Houston [1st Dist.] 1991, writ denied). The officers have not cited any authority establishing their entitlement to immunity from Boone's claims under this doctrine, which has been applied to dismiss inmate litigation *532when the amount of damages sought was insignificant. *See**id.* (affirming trial court's dismissal of lawsuit as frivolous when actual damages sought were $ 3.55). We decline to hold that this doctrine confers official immunity from suit and thus implicates this court's jurisdiction to hear an interlocutory appeal under section 51.014(a)(5). We thus conclude that we lack jurisdiction to address this issue as well.

**II. Entitlement to Official Immunity**

The officers argue in their second issue that they are entitled to immunity as to all of Boone's claims because in confiscating the items, they met their burden to conclusively prove each element of official immunity: they contend specifically that they were performing discretionary duties in good faith within the scope of their authority. We conclude that the officers have established they are entitled to official immunity as to the confiscated typewriter because it was used to conceal contraband. We cannot reach the same conclusion as to the handmade items because the officers did not meet their burden to show that they acted in good faith in confiscating these items.

The Act defines "theft" as "unlawfully appropriating property or unlawfully obtaining services." Tex. Civ. Prac. & Rem. Code § 134.002(2). A person who commits theft is liable for the damages resulting from the theft. *Id.* § 134.003(a). In his original petition, Boone alleged the following facts. The officers "took" his dog tag. The property inventory sheet listing items "[i]n [o]ffender's possession" and "[s]tored in [p]roperty [r]oom" excluded his typewriter, dog tag, wedding band, and certain other items that were taken. Boone initially refused to sign the sheet because of the missing items. He eventually signed it because the property officer told him that he was signing only for the property that he was receiving back. We conclude that Boone alleged facts making out a prima facie case that the officers unlawfully appropriated Boone's typewriter, dog tag, and wedding band. We turn to the evidence supporting the officer's official immunity defense.

**Discretionary or ministerial duties?** As discussed, a governmental employee is entitled to official immunity for the good faith performance of discretionary duties within the scope of the employee's authority. *City of Houston v. Jenkins* , 363 S.W.3d 808, 814 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). A discretionary act is one involving personal deliberation, decision, and judgment; in contrast, actions requiring obedience to orders or the performance of a duty to which the actor has no choice are ministerial. *Id.* (citing *City of Lancaster v. Chambers* , 883 S.W.2d 650, 654 (Tex. 1994) ). Thus, if the duty is imposed by law, then the performance of the duty is a ministerial act, and there is no official immunity for the failure to perform it. *Id.* Because ministerial acts are those which the law prescribes and must be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, a significant aspect of determining whether an act is ministerial or discretionary involves a consideration of whether a law or regulation controls the acts of the government employee in a particular situation. *Harris Cnty. v. DeWitt* , 880 S.W.2d 99, 101 (Tex. App.-Houston [14th Dist.] 1994), *aff'd* , 904 S.W.2d 650 (Tex. 1995).

Here, the officers contend that no law or regulation prescribes how they should determine whether an item is contraband and whether to confiscate it. However, the officers point to TDCJ policy to support their argument that confiscating contraband is discretionary. The TDCJ Offender Orientation Handbook defines "contraband" in relevant part as "[a]ny item *533which, in the judgment of TDCJ personnel, unreasonably hinders the safe and effective operation of the facility." The handbook further states, "Any contraband found on TDCJ property may be taken and disposed of according to procedures set forth by the TDCJ and the State of Texas." We agree that this policy allowed the officers to use their own judgment to decide what constituted contraband and whether to confiscate it. *See**Moore v. Collins* , 47 F.3d 425, 1995 WL 71177 at *4 (5th Cir. 1995) (citing TDCJ's "broad definition" of "contraband" and concluding that because empty boxes in inmate's cell posed a fire hazard "in [the officer's] judgment," they qualified as contraband). Accordingly, the officers' conduct in confiscating Boone's property was discretionary.

**In good faith?** To establish good faith, the officers must show that reasonably prudent officers under the same or similar circumstances could have believed that their conduct was justified based on the information they possessed when the conduct occurred. *Telthorster v. Tennell* , 92 S.W.3d 457, 465 (Tex. 2002). The officers need not prove that it would have been unreasonable not to engage in the conduct or that all reasonably prudent officers would have engaged in the same conduct. *Id.* Rather, they must prove only that reasonably prudent officers, under similar circumstances, might have made the same decision. *Id.* That the officers were negligent will not defeat good faith: the test does not inquire into "what a reasonable person would have done," but into "what a reasonable officer could have believed." *Id.*

The officers argue that they acted in good faith in confiscating the typewriter. Boone challenges the confiscation of the typewriter, which he concedes was used to conceal contraband. The TDCJ Orientation Handbook includes a nonexclusive list defining cell phones, among other things, as dangerous contraband "[r]epresent[ing] a threat to the security and safety of the unit." Although the list does not specifically reference SIM cards, they are related to-arguably a part of-cell phones. Boone also conceded in his appellate brief that "the SIM cards [are] dangerous contraband."5 Given TDCJ's nonexclusive list of "dangerous contraband" and broad definition of "contraband," which includes "[a]ny item which, in the judgment of TDCJ personnel, unreasonably hinders the safe and effective operation of the facility," we conclude that reasonably prudent officers under the same or similar circumstances could have concluded that the typewriter should be confiscated and not returned because it was being used to conceal dangerous contraband.6*See**534*Chambers* , 883 S.W.2d at 657 (noting standard requires plaintiff to show that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts").

The officers also argue they confiscated the handmade items in good faith "because Boone has presented no facts or evidence to suggest [the officers] acted in bad faith in their handling of the items." But the officers do not offer any explanation for their actions. Boone alleged that the officers confiscated his dog tag and wedding band. The officers had the burden to show that they acted in good faith in doing so. *See**Telthorster* , 92 S.W.3d at 464-65 (noting officer had burden to establish he acted in good faith "for purposes of invoking official immunity's protection"). The record is silent as to whether the handmade items were contraband. Moreover, presuming that the officers were justified in searching Boone's cell-a proposition that Boone does not dispute-the officers were required to prove that a reasonably prudent officer could have believed that confiscating the handmade items was justified based on the information the officers possessed at the time. *Cf.**Turner v. Fox* , No. 09-12-00541-CV, 2013 WL 5775771, at *2 (Tex. App.-Beaumont Oct. 24, 2013, pet. denied) (mem. op.) (noting to establish good faith, an officer must show "that a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred"); *Gonzales v. Kelley* , No. 01-10-00109-CV, 2010 WL 2650615, at *7 (Tex. App.-Houston [1st Dist.] July 1, 2010, no pet.) (mem. op.) (holding officers conclusively established good faith in using taser "in response to specific aggressive acts" by inmate). The officers failed to do so and thus have not shown on this record that confiscating the handmade items was done in good faith.

**Within the scope of their authority?** The officers finally assert that the search of Boone's cell and confiscation of his property was within their authority as correctional officers. Officials act within the scope of their authority when they discharge the duties generally assigned to them, even if they err in completing the task. *Chambers* , 883 S.W.2d at 658 ; *see also**Ballantyne v. Champion Builders, Inc.* , 144 S.W.3d 417, 424 (Tex. 2004). The Orientation Handbook allows officers to confiscate and dispose of contraband "according to procedures set forth by the TDCJ and the State of Texas." We agree that the search of Boone's cell and confiscation of contraband was within the officers' authority as correctional officers. *See**Turner* , 2013 WL 5775771, at *2 (holding officer was "acting under lawful authority" when she confiscated boots based on question of ownership) (citing *Allen v. Thomas* , 388 F.3d 147, 149 (5th Cir. 2004) ("Because the undisputed facts reveal that [the inmate's] word processor and radio were confiscated under the authority of a prison administrative directive, the confiscation was not a random, unauthorized act by a state employee.")).

For the above reasons, we sustain the officers' second issue as to the typewriter and overrule the issue as to the handmade items because the officers have not shown on this record that confiscating the handmade items was done in good faith.

***Conclusion***

Because the officers have demonstrated their entitlement to official immunity as to Boone's claim for theft of the typewriter, *535the trial court lacked jurisdiction over that claim and thus erred in denying the officer's plea to the jurisdiction on that claim. We thus dismiss Boone's theft claim as to the typewriter. Regarding the handmade items, the officers failed to establish their entitlement to official immunity as to Boone's theft claims. We affirm the trial court's denial of the plea to the jurisdiction as to the handmade items.

( Jewell, J., concurring).

**CONCURRING OPINION**

Kevin Jewell, Justice

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 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 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"

*536as 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 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

*537In 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. Stevens*7 cited by the officers, did so in the context of chapter 13 or chapter 14 dismissals of 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

*538We 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 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.). "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 *539all 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); *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 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 *540misplacing 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.

1

The Texas prison system has a two-step formal grievance process. *Johnson v. Johnson* , 385 F.3d 503, 515 (5th Cir. 2004). The step 1 grievance is handled within the prisoner's facility. *Id.* After an adverse decision at step 1, the prisoner may file a step 2 grievance, which is handled at the state level. *Id.* The officers do not contend that Boone failed to exhaust his administrative remedies through this process and assert instead that "Boone filed grievances, his claims were investigated by third party personnel and it was found that his typewriter was properly confiscated and all of his property had been returned to him." Boone does not seek damages for the typewriter that was destroyed in his cell. Boone alleges that the other typewriter was destroyed later.

The officers interpret Boone's appellate brief as an assertion for the first time on appeal that the second typewriter was also destroyed in his cell. We construe Boone's statements on appeal to allege only that the typewriter was destroyed after it was confiscated, which he asserted below. However, in this appeal, we consider only the facts pleaded by Boone below. *See**Metro. Transit Auth. of Harris Cnty. v. Douglas* , 544 S.W.3d 486, 492 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (noting that when a plea to the jurisdiction challenges the plaintiff's pleadings, the court of appeals determines whether the pleadings allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction over the case). Boone also complains on appeal about additional items that were confiscated, but in the trial court, he sought damages only for the typewriter and handmade items.

2

In his original petition, Boone expressly stated only that he was suing the officers "in their personal or individual capacities."

3

The statute states that a person may appeal from the denial of "a motion for summary judgment that is based on an assertion of immunity." Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). The supreme court has held that "an appeal may be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used." *Austin State Hosp. v. Graham* , 347 S.W.3d 298, 301 (Tex. 2011).

4

Section 51.014(a)(6) allows an interlocutory appeal from the denial of a motion for summary judgment "based in whole or in part against or defense by a member of the electronic or print media ... arising under the free speech or free press clause of the First Amendment." Tex. Civ. Prac. & Rem. Code § 51.014(a)(6). The supreme court just held that section 51.014(a)(6) allows a person to file an interlocutory appeal from the trial court's denial of the entire motion, including grounds not based on a First Amendment challenge. *Dallas Symphony Ass'n, Inc. v. Reyes* , No. 17-0835, 571 S.W.3d 753, 755, 2019 WL 1090771, at *1 (Tex. Mar. 8, 2019). In reaching this conclusion, the high court relied on the language in the statute that the motion must be based "in whole or in part" on the requisite constitutional claims. *Id.* at 761, at *5. The court expressly distinguished section 51.014(a)(6) from section 51.014(a)(5), applicable here, because section 51.014(a)(5) does not include the language "in whole or in part." The court expressly declined to address whether section 51.014(a)(5) is limited to interlocutory appeals from the denial of a motion for summary judgment "based on the assertion of official immunity." *Id.* We thus are bound to follow our precedent in *Hernandez* : that we have jurisdiction over interlocutory appeals under section 51.014(a)(5) only to the extent that they are "based on the assertion of official immunity." *See**Hernandez* , 208 S.W.3d at 11.

5

Boone agrees that he is not entitled to the return of the SIM cards because they are dangerous contraband. Instead, he contends that his typewriter should have been returned because it is not dangerous contraband. But the standard is whether a reasonable officer under the same or similar circumstances *could have concluded* that the typewriter should not be returned. *See**Chambers* , 883 S.W.2d at 657.

6

In a reply brief, Boone asserted that the officers admitted they destroyed his typewriter after confiscating it. On rehearing, Boone again concedes that the officers had discretion to confiscate the typewriter but argues that they did not have discretion to destroy it, he should have received notice of its disposition, and he should have been given the option to send it home. Because the dangerous contraband list in the TDCJ Orientation Handbook is nonexclusive, the officers had the discretion to designate the typewriter as dangerous contraband, particularly when it was being used to hide dangerous contraband, i.e., cell phone parts. Property that is so designated can be-but is not required to be-destroyed. Thus, the officers also had discretion to destroy the property. An inmate is not entitled to notice of the destruction of dangerous contraband and is not allowed to send such contraband home.

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.).

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.

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, 571 S.W.3d 753, 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 759-61, 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* , 571 S.W.3d at 760, 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).

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.

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).

11

Boone's allegations as to his dog tag, however, implicate only Sergeant Estrada and not the other officers.

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).