Opinion filed August 5 , 20 2 1



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 19

- 00249

- CV

__________ NORMAN L. AGNEW , Appellant
V. LINDA GONZALE S , ET AL

. , Appellee s

On Appeal from the 32nd District Court Mitchell County , Texas Trial Court Cause No. 17310

M E M O R A N D U M O P I N I O N Appellant, Norman L. Agnew , an inmate proceeding pro se and in forma pauperis , appeals the trial court’s dismissal of his state law tort claim of conversion and his constitutional claims under 42 U.S.C. § 1983 that he asserted against Appellees

— Warden Linda Gonzales , Warden Benny Bundy, and Correction al Officers Austin Curran, Alici a Caldera, and Felicia Fife . Appellees were employed2 with the Texas Department of Criminal Justice (TDCJ) at the time Appellant filed his suit

. On appeal, Appellant challenges the trial court’s dismissal of his claims as frivolou s pursuant to the criteria of Section 14.003 of the Texas Civil Practice and Remedies Code (Chapter 14)

. See T EX

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. § 14.003(a)( 2 ) (West 2017 ). Appellant initially fil ed a brief with this court that purported to amend his operative pleading to assert claims , for the first time, against Appellees under the Theft Liability Act. Appellant later submitted a “supplemental brief” in which he generally challenged the t rial court ’s Chapter 14 dismissal of hi s claims. 1 W e have ascertain ed from Appellant’s multiple filings that he contends that ( 1) the trial court erred when it dismissed his claims without giving him the opportunity to respond to Appellees’ motion to dismiss and (2) the trial court erred when it dismissed Appellant’s claims as frivolous

. We affirm the trial court’s order

. I. Factual Background Appellant is an inmate in the TDCJ ’s Wallace Unit in Colorado City, Texas

. In his original petition (the operative pleading) , Appellant allege d that Correctional Officer Austin Curran placed him on property restrictions and removed his personal property, including his legal mail and books , from his prison cell. Appellant allege d that Officer Curran’s actions constituted (1 ) a violation of his constitutional right to due process, ( 2 ) a violation of his right o f access to the courts, and ( 3 ) conversion of his personal property. Pursuant to the applicable provisions of Chapter 14, Appellee s file d a motion to dismiss Appellant’s claims under Rule 91a of the Texas Rules of Civil Procedure and asserted that Appellant’s pleaded claims did not have a basis in law or in fact; a copy of the motion was mailed to Appellant at the Wallace

1 Appellant’s first brief does not reference the applicable standard of review ; however , his supplemental brief does cite a summary judgment standard. Construing Appellant’s pro se brief liberally,
we interpret his appeal to be a challenge to the trial court’s Chapter 14 dismissal. See Montana v. Patterson , 894 S.W.2d 812, 814 (Tex. App.

— Tyler 1994, no writ. ) (citing E stelle v. Gamble , 429 U.S. 97, 106 (1976)).3 Unit. T he trial court , without conducting a hearing, granted Appellees’ motion and dismissed Appellant’s claim s as frivolous under Chapter 14

. II. Analysis Chapter 14 governs action s that are brought by an inmate in a dis trict court in which the inmate has filed an affidavit or unsworn declaration of his inability to pay the required court costs associated with the action

. See C IV

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. § 14.002(a); Simmonds v. Harrison , 387 S.W.3d 812, 814 (Tex. App.

— Eastland 2012, no pet.)

. Chapter 14 applies to Appellant’s suit because he is a pro se inmate and has filed a declaration of his inability to pay the required court costs.
W e review t he dismissal of a claim pursuant to Chap ter 14 under an abuse of discretion standard. See Retzlaff v. Tex. Dep’t of Criminal Justice , 94 S.W.3d 650, 654 (Tex. App

. — Houston [14th Dist.] 2002, pet. denied). However, when, as in this

case , the trial court has determined without holding an evident iary hearing that the inmate’s claim s are frivolous, we review the trial court’s decision de novo and affirm only if the dismissed claim s ha ve no arguable basis in law or in fact

. See Long v.
Tanner , 170 S.W.3d 752, 754 (Tex. App.

— Waco 2005, pet. denied) (citing Retzlaff , 94 S.W.3d at 653). We also review the trial court’s rulings on a Rule 91a motion to dismiss de novo to determine if the pleaded claims have a basis in law or in fact

. City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). As such ,
w e will affirm if the trial court’s decision was proper under any applicable legal theory. Hamilton v. Pechacek , 319 S.W.3d 801, 809 (Tex. App.

— Fort Worth 2010, no pet.).
A. Dismissal Without Opportunity to Respond In his f irst issue , Appellant asserts that he was entitled to notice of Appellees’ motion to dismiss and an opportunity to be heard on the motion. An inmate who brings a claim that fall s within the scope of Chapter 14 is not entitled (1) to notice of a motion to dismiss before the trial court rules on the motion4 or (2) to a mandatory hearing before the trial court

. C IV

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. § 14.003(a), (c); Hamilton v. Williams , 298 S.W.3d 334, 340 (Tex. App

. — Fort Worth 2 009, pet. denied) ; Nabelek v. Dist. Att ’ y of Harris Cty. , 290 S.W.3d 222, 232 (Tex. App.

— Houston [14th Dist.] 2005, pet

. denied) (“It is well

- settled a trial court is not required to conduct an oral hearing before dismissing a suit under section 14.003.”). Thus, because a trial court may dismiss an inmate’s suit either before or after service of
process has been perfected , a trial court will not abuse its discretion if it dismiss es the inmate ’s claim s pursuant to Section 14.003 without notice to the inmate or without first permitting the inmate an opportunity to respond to a defendant’s motion to dismiss. See Hamilton , 298 S.W.3d at 340 ; Timmons v. Luce , 840 S.W.2d 582, 586 (Tex. App.

— Tyler 1992, no writ); see also C IV

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. § 14.003(c). Here, t he tria l court dismissed Appellant’s claims two days after Appellees’ motion to dismiss was filed. Appellant argues that the trial court erred because it did not allow Appellant the opportunity to respond to Appellees’ motion. Irresp ective of Appellant’s contention , the trial court clearly had the discretion to dismiss Appellant’s claims without holding a hearing or affording Appellant an opportunity to respond to the motion. See Hamilton , 298 S.W.3d at 340; Nabelek , 290 S.W.3d at 23 2 ; Gowan v. Tex. Dep’t of Criminal Justice , 99 S.W.3d 319, 323 (Tex. App.

— Texarkana 2003, no pet.)

. Because Appellant was not entitled to (1) notice of Appellees’ motion , (2) a hearing before the trial court , or (3) an opportunity to respond, the trial court did not , on these bases, abuse its discretion when it dismissed Appellant’ s claims. See Douglas v. Moffe t t , 418 S.W.3d 336,
340 & n.7 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) ; Hamilton , 298 S.W.3d

at 340 ; Gowan , 99 S.W.3d at 321

. Accordingly, we overrule Appellant’s first issue.5 B. Dismissal of Frivolous Claim s In his second issue, Appellant asserts the trial court erred when it dismissed his claims as frivolous pursuant to Chapter 14

. We disagree. A trial court may dismiss a claim as frivolous under Chapter 14 if it determines that the claim has no arguable basis in law or in fact. C IV

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. § 14.003(a)(2), (b)(2); s ee Hamilton , 298 S.W.3d at 339 (holding a claim has no arguable basis in law or in fact when it is based upon a meritless legal theory). On that basis, t he trial c ourt may dismiss a frivolous claim with prejudice

. 2 Hamilton , 298 S.W.3d at 340.
1. Due Process
F irs t , Appellant alleged in his operative pleading that the confiscation of his legal materials by prison officials constituted a deprivation of his constitutional right to due process. To establish a procedural due process violation, a claimant must plead and p rove (1) the deprivation of a protected property interest and (2) the absence of due process. See Mosley v. Tex. Health & Human Servs. Comm’n , 593 S.W.3d 250, 264 (Tex. 2019).
A random and unauthorized deprivation of a property interest does not violate procedural due process if the State furnishes an adequate post

- deprivation remedy. Brewster v. Dretke , 587 F.3d 764, 768 (5th Cir. 2009); Caine v. Hardy , 943 F.2d 1406, 1412 (5th Cir. 1991). Further, d eprivations of property by prison officials,

even if intentional, do not violate due process if an adequate post

- deprivation remedy is provided by the State. Hudson v. Palmer , 468 U.S. 517, 533 (1984) ; Brewster , 587 F.3d at 768

. I n Texas , a post

- deprivation administrative remedy exists to compensate inmates for property that is lost or damaged by prison officials. See
T EX

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. §§ 501.007, .008 (West 2012 ) ; see also Murphy v. Collins ,

2 Although t he State argues that dismissal of Appellant’s claims with prejudice is appropriate in this case, the trial court’s order clearly dismissed Appellant’s claims without prejudice.6 26 F.3d 541, 543

– 44 (5th Cir. 1994); Fernandez v. T.D.C.J. , 341 S.W.3d 6, 13 (Tex. App.

— Waco 2010, no pet.)

. Consequently, b ecause inmates in Texas prisons are provided an adequate post

- deprivation administrative remedy to pursue , they have no arguable ba sis in law to assert a cognizable S ection 1983 due process claim that is premised on the intentional destruction or deprivation of their property by a prison official. Aguilar v. Chastain , 923 S.W.2d 740, 744 (Tex. App.

— Tyler 1996 , writ denied). We hold that the trial court did not err when it d etermine d that Appellant’s due process claim had no basis in law or in fact because a post

- deprivation administrative remedy exists to compensate an inmate for property that is lost or damaged by TDCJ offic ers. See G OV ’ T §§ 501.007, .008; see also Murphy , 26 F.3d
at 54 3

– 44; Fernandez , 341 S.W.3d at 13

. 2. Access to the Courts Next, Appellant alleged in his operative pleading that the confiscation of his legal materials by prison officials deprived him of his right of access to the courts. To establish a deprivation of the right to access the courts, an inmate must allege an “actual injury.” Brewster , 587 F.3 d at 769 (citing Lewis v. Casey , 518 U.S. 343, 3 51 (1996) ) . A claim by an inmate that alleg es a violation of this right will fail if the inmate does not demonstrate “that his position as a litigant was [actually] prejudiced by” the defendant’s actions. McDonald v. Steward , 132 F.3d 225, 230

– 31 (5th Cir. 1998) (quoting Eason v. Thaler , 73 F.3d 1322, 1328 (5 th Cir. 1996)) ; accord Hamilton , 319 S.W.3d at 815

. In this case , Appellant failed to raise or plead any factual allegations regarding

an y injury or impact that the alleged destruction of his legal documents had on his position as a litigant in this or any other litigation. See Hamilton , 319 S.W.3d at
815. In fact , Appellant failed to plead an “actual injury” which is required to assert

an access
- to

- the

- courts claim. See id. ; see also McDonald , 132 F.3d at 230

– 31.7 Therefore, Appellant’s access

- to

- the

- courts claim ha s no basis in law or in fact , and the trial court did not err in dismissing it

. See Hamilton , 319 S.W.3d at 815.
3. Conversion Finally, Appellant alleged a claim for conversion in his operative pleading, a claim that has no basis in law or in fact because there is no waiver of sovereign immunity under the T exas T ort C laims A ct (TTCA) for such a claim

. 3
Section 101.10 6(f) of the T T CA provides that when a suit is filed against a government al employee that is based upon conduct within the general scope of the employee’s employment and the same suit could have been brought against the governmental unit , the suit is held to be against the employee in his official capacity only. C IV

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. § 101.106(f). If the governmental employee move s to dismiss a suit that could have been brought against the government al unit , the suit shall be dismissed unle ss the plaintiff files amended pleadings within th ir ty days after the motion to dismiss is filed that dismiss es the employee from the suit and thereafter nam es the governmental unit as the defendant. Id. T he Texas Supreme
Court has interpreted S ection 101.106(f) to “foreclose suit against a governmental employee in his individual capacity if he was acting within the scope of [his] employment.” Franka v. Velasquez , 332 S.W.3d 367, 381 (Tex. 2011). Further, in waiving governmental im munity for governmental units, “the Legislature correspondingly sought to discourage or prevent recovery against an employee.” Id. at 384. Therefore, all tort claims, including intentional tort claims that are asserted

3 In his first brief, Appellant purported ly amend ed his complaint and argue d , for the first time on appeal , that Appellees were liable for the theft of his personal property under the Texas Theft Liability Act. See C IV

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. §§ 134.001

– .005 (West 2019)

. This issue has not been preserved for our review. See T EX

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. P. 33.1. Notably, however, the same analysis we apply here to Appellant’s T T CA claim would apply equally to a Theft Liability Act claim in this context. See, e.g. , Lopez v. Serna , 414 S.W.3d 890, 893

– 95 (Tex. App.

— San Antonio 2013, no pet.) (citing Franka v. Velasquez , 332 S.W.3d 367, 369 (Tex. 2011) ).8 against individual government actor s, necessarily “could have been brought” against the relevant governmental unit, regardless of whether the governmental unit’s own immunities might ultimately bar the claim. Id. at 384

– 85

. A ll common law torts, including intentional torts, that are asse rted against a governmental unit are subject to the provisions of the T T C A

. Mission Consol. Ind. Sch. Dist. v. Garcia , 253 S.W.3d 653, 658

– 59 (Tex. 2008). Although the TTCA provides a limited waiver of sovereign immunity for certain claim s , it doe s not waive immunity for claims that aris e from intentional torts. See C IV

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. §§ 101.021, 101.022, 101.057 (2) ; see also Delany v. Univ. of Houston , 835 S.W.2d 56, 59 (Tex. 1992) ( holding that the TTCA does not waive immunity for claims arising out of the intentional torts of a governmental employee). Here, Appellant assert ed a claim of conversion against Appellees, as employees of a governmental agency, in their individual capaciti es. The focus of Appellant ’s claim is the confiscation of his property by TDCJ correctional officers.
I t is well within a correctional officer’s scope of employment to confiscate inmate property. See, e.g. , Laverie v. Wetherbe , 517 S.W.3d 748, 753 (Tex. 2017) (providing that in determining whether a government employee’s actions were within the scope of employment, “the Tort Claims Act focuses on ‘performance

. . . of the duties of an employee’s office or employment,’ which calls for an objective

as sessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it”). Thus, Appellant’s claim could be properly considered to have been brought against each individual Appellee in his or her respective official c apacity only. See C IV

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. § 101.106(f); Franka , 332 S.W.3d at 384

– 85. Consequently , Section 101.106(f)’s thirty

- day pleading

- amendment window applied to Appellant’s case

. As such, within thirty days after Appellees filed t heir motion to dismiss, Appellant was required to amend his pleadings to dismiss Appellees and thereafter nam e TDCJ as the sole defendant.9 See C IV

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. § 101.106(f). Appellant failed to do so. Unfortunately for Appellant , he did not file an amended p leading to comply with the requirements of Section 101.106(f) until nearly four months after the trial court had dismissed his claims. Nevertheless, and i mportantly, e ven if Appellant had timely amended his pleadings to dismiss Appellees and name TDCJ as the sole defendant in his suit , the trial court still would not have erred by dismiss ing Appellant’s conversion claim against TDCJ because conversion is an intentional tort for which immunity is not waived under the T T CA. See , e.g. , City of Houston v. Petro leum Traders Corp. , 261 S.W.3d 350, 361 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) (holding that the TTCA does n ot waive immunity for a claim of conversion) . Thus, in this instance, Appellant is barred from bring ing a conversion claim against Appellees and TDCJ (if it had been joined as a party)

. Consequently, t he trial court did not err when it dismiss ed Appellan t’s conversion claim because it ha s no basis in law or in fact. Accordingly, we overrule Appellant’s second issue.
III. This Court’s Ruling We affirm the order of the trial court.

W. STACY TROTTER JUSTICE

August 5 , 20 2 1 Panel consists of: Bailey , C.J., Trotter , J., and Williams, J.