Reginald Alonzo Cooper v. Governor Ann W. Richards, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-239-CV

REGINALD ALONZO COOPER,

Appellant

v.

GOVERNOR ANN RICHARDS, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,043

O P I N I O N

Appellant Cooper appeals from an order of the trial court dismissing his pro se informa pauperis action for lack of prosecution.

Appellant, a prison inmate, sued then Governor Ann Richards, correctional officers Turner, Smith and Sears, and 19 other named employees of the Texas Department of Criminal Justice or members of the Board of Criminal Justice.

Appellant filed his action as a Texas Tort Claims case pursuant to the Texas Tort Claims Act. In his petition he complains of six instances in which he asserts unnecessary force was used against him. Most of his petition complains generally about discrimination against black inmates in TDCJ and that Governor Richards should control her employees better.

Appellant sought money damages, a declaratory judgment, a temporary restraining order and a mandatory injunction.

In December 1994 the trial court, pursuant to chapter 13 of the Civil Practice & Remedies Code, dismissed Appellant's suit as to all defendants except correctional officers Turner, Smith and Sears.

Appellant's suit was filed in November 1994. On August 21, 1996, the trial court wrote Appellant and counsel for Appellees that there had been no hearings in the case in six months; that the case was set for a pretrial hearing on September 18, 1996, at 1:00 p.m.; and that if any desired to be retained on the docket, to be present and discuss future settings. Appellees responded by a motion to dismiss the case. On September 18, 1996, the case was called by the court; Appellant was not present; and the court dismissed the case for lack of prosecution.

Appellant appeals asserting the trial court abused its discretion in dismissing his case for lack of prosecution. He asserts that when he received the notice of August 21, 1996, to appear on September 18, he requested an extension of time to obtain counsel and requested to be bench warranted to the September 18 hearing.

Appellant did not appear at the September 18 hearing and it cannot be determined from the transcript that the court ever ruled on Appellant's request/motion to appear at the dismissal hearing by way of a court-ordered bench warrant. The trial court should have acted on Appellant's request to be bench warranted to the hearing. Byrd v. Attorney General, 877 S.W.2d 566 (Tex. App. Beaumont 1994, not writ). Nevertheless, Appellant has not shown harm.

Appellant filed suit under the Texas Tort Claims Act. A plaintiff can only create liability if he suffers injuries from the use of publicly-owned vehicles, as the result of a premises defect, or from a condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem. Code, 100.021; City of Denton v. Von Page, 701 S.W.2d 831, 834 (Tex. 1986).

Plaintiff's complaint does not allege a single fact which sets forth a claim under the Act. He complains of unnecessary force being used against him by TDCJ employees. That alleged wrong does not involve injuries from the use of publicly-owned vehicles, or as the result of a premise defect, or from a condition or use of tangible personal or real property.

Appellant failed to set forth a claim under the Act and his case should have been dismissed as frivolous.

Moreover, Appellees Turner, Smith and Sears, as prison correctional officers, are entitled to quasi-judicial immunity which shields them from being sued in their individual capacities under any state cause of action, as their acts are discretionary and within the scope of their authority. Austin v. Hale, 711 S.W.2d 64, 66 (Tex. App. Waco 1986, no writ); Augustine v. Nusom, 671 S.W.2d 112, 115 (Tex. App. Houston [14th Dist.] writ ref'd n.r.e.). Appellant has pled no facts to indicate Appellees do not enjoy quasi-judicial immunity in this case. For this reason Appellant's case should have been dismissed as frivolous,

Rule 81(b)(1), Texas Rules Appellate Procedure, provides that no judgment shall be reversed on appeal on the ground the trial court has committed an error of law unless the appellate court be of the opinion that the error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and did cause rendition of an improper judgment in the case.

In this case, since the trial court should have dismissed Appellant's case as frivolous because he stated no cause of action under the Texas Tort Claims Act, and because Appellees had quasi-judicial immunity, the trial court's dismissal for lack of prosecution has not harmed Appellant or caused the rendition of an improper judgment in the case.

Appellant's contentions are overruled. The judgment is affirmed

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 19, 1997

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