Thomas A. Warren v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTIONS DIVISION--Appeal from 36th District Court of Bee County

NUMBER 13-04-424-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS A. WARREN, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE -

CORRECTIONAL INSTITUTIONS DIVISION, Appellee.

On appeal from the 36th District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

Appellant, Thomas A. Warren, an indigent inmate in the Texas Department of Criminal JusticeBInstitutional Division (TDCJ-ID), appeals the trial court's dismissal of his pro se case under chapter fourteen of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002). He sued appellee, the TDCJ-ID, seeking district court de novo review of an adverse administrative decision. We affirm the trial court's order dismissing the lawsuit.

I. Issues Presented

Warren presents two issues: (1) whether the trial court erred in dismissing his prisoner's in forma pauperis suit for want of jurisdiction; and (2) whether the trial court erroneously construed his petition as a "lawsuit" rather than an appeal from an adverse administrative decision.

 II. Background[1]

A bench warrant caused Warren to leave behind personal belongings. Upon his return to TDCJ-ID, he filed a grievance seeking remuneration for lost property, namely, one light bulb and an envelope containing approximately four hundred family photographs. TDCJ-ID denied his claim, stating, in part, that he received all his property. The final TDCJ-ID decision states:

An investigation has been conducted regarding you[r] property claim and you have failed to provide evidence that the TDCJ-ID was the proximate cause of your alleged property loss/damage. The information provided in your Step 2 appeal does not refute the finding of the Step 1 and is not sufficient to indicate the agency is responsible for the loss/damage of your property. Reimbursement in this instance would not be appropriate as the criteria for compensation has not been met. Records indicate that you signed the PROP-05 on 6-13-03. The PROP-03, dated 7-3-03, when you returned from bench warrant listed photographs, photo albums and legal material.

After exhausting internal appeals, Warren filed suit for de novo review in the district court of the denial of his property claim. In his original petition, he sought declaratory judgment (1) to vacate the agency decision, and (2) to find the evidence legally and factually insufficient to sustain the agency's decision. Warren filed a motion to proceed in forma pauperis, a declaration of previous court filings, and a declaration of previous grievance filings.

TDCJ-ID filed a plea to the jurisdiction asserting (1) lack of jurisdiction and (2) sovereign immunity. TDCJ-ID also filed a motion to dismiss under chapter fourteen of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002). Warren filed a response to the motion, asserting essentially that the motion had no basis in law or in fact.

The trial court convened a telephonic hearing. Warren stated, "This is not a suit for an appeal of a decision of administrative body. It's of a [sic] property rights. I have an independent right to challenge the actions . . . ." The following ensued to clarify Warren's request for relief:

The Court: So what you're actually doing in this case is you're beginning suit to recover property; is that correct?

Mr. Warren: Yes, sir.

The Court: All right. And what property is it your [sic] seeking to recover?

Mr. Warren: I had some family pictures of my family and friends and everything and I've been to TDCJ over 13 years and I'm from out of state and that's how I communicated with my family with pictures and letters. And I had a bunch of pictures when I came out beginning chain and I workBI work as an [sic] guard chain up the round so I know what types of inmates do with other inmates' property if there's stuff around, so I figured that's what happened. But they're just brushing it under the rug.

The Court: All right. So we've got it established then that the purpose of this hearing is for recovery of some property that you say is missing; is that correct?

Mr. Warren: Yes, sir.

Counsel for the TDCJ-ID moved for dismissal on jurisdictional grounds because the property was valued below $500, and on sovereign immunity grounds. The trial court granted the plea to the jurisdiction. The order states (1) the trial court considered the motion and the pleadings on file, and (2) Warren's claims fail for want of jurisdiction. This appeal ensued.

III. Scope and Standard of Review

As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). If the district court lacks jurisdiction, then its decision would not bind the parties. See id. A decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas law. See id.

A trial court's lack of subject matter jurisdiction is fundamental error and may be raised the first time on appeal. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 442-44 (Tex. 1993). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law, to be reviewed de novo. Id. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. Id. However, in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact. Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiffs and look to the pleader's intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

IV. Discussion

The relief sought in this case is not available to Warren. Warren's live pleading sought declaratory judgment. His statement to the trial court unequivocally confirmed he sought recovery of personal property. On appeal, he asserts he sought declaratory relief.

Assuming without deciding that Warren preserved error (because his complaint below differs from the complaint on appeal), we observe that declaratory judgment is only appropriate if a justiciable controversy exists as to the rights and status of the parties, and the controversy will be resolved by the declaration sought. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.006(b) (Vernon 1997). In a proceeding for declaratory judgment, the court may award costs and attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997). While the court may also award further relief when necessary and proper, such relief must be within the existing jurisdiction of the court. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.011 (Vernon 1997).

In this case, Warren's live pleading, whether a de novo appeal or a "lawsuit," ostensibly sought a declaration of his rights. Warren admittedly seeks recovery of his personal property. We conclude that the suit is barred by the doctrine of sovereign immunity. See Tex. Natural Res. Conservation Comm'n v. IT Davy, 74 S.W.3d 849, 856 57 (Tex. 2002). Private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for recovery of property as a declaratory judgment claim. See id.

We conclude that the trial court properly dismissed Warren's suit on immunity grounds. We overrule his first issue. We need not reach his second issue. See Tex. R. App. P. 47.1.

 V. Conclusion

We affirm.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this 21st day of July, 2005.

[1] In a civil case, this Court will accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f). The statement must be supported by record references. Id.