Texas Department of Criminal Justice-Correctional Institutional Division v. David G. Martinez--Appeal from 156th District Court of Bee County

NUMBER 13-05-495-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE-CORRECTIONAL

INSTITUTIONAL DIVISION, Appellant,

v.

DAVID G. MARTINEZ, Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza


David Martinez, an inmate, filed a pro se suit against the Texas Department of Criminal JusticeBCorrectional Institution Division (ATDCJ@) and Boyd Distribution Center, the prison commissary, seeking injunctive relief requiring the TDCJ and Boyd to service and repair his word processor. In addition, Martinez sought damages for breach of contract, violation of the Texas Deceptive Trade Practices Act, loss of use of the word processor, and mental suffering and anguish. The TDCJ filed a plea to the jurisdiction asserting sovereign immunity. The trial court granted the TDCJ=s plea to the jurisdiction in part, dismissing all Martinez=s claims for monetary damages. The trial court denied the TDCJ=s plea to the jurisdiction with respect to Martinez=s claim for injunctive relief. The TDCJ now argues that the trial court erred by failing to grant the plea to the jurisdiction in its entirety.

The TDCJ concedes that sovereign immunity does not preclude a party from seeking equitable relief, such as a declaration of rights and injunctive relief. See Denson v. TDCJ ID, 63 S.W.3d 454, 460 (Tex. App.BTyler 1999, pet. denied). According to the TDCJ, the trial court should have granted its plea to the jurisdiction in its entirety because Martinez failed to name an individual in authority at the TDCJ as a defendant.

As this Court has explained, in noncriminal matters, if a party seeks to enjoin the activities of a state agency, the party must sue an individual in authority at the agency and not only the agency itself. See Nabejas v. Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.BCorpus Christi 1998, no pet.); see also Robinson v. Jefferson County, 37 S.W.3d 503, 511 (Tex. App.BTexarkana 2001, no pet.). Martinez=s failure to name an individual in authority at the TDCJ necessarily precludes the trial court=s jurisdiction over his claim for injunctive relief. See Nabejas, 972 S.W.2d at 876.


Nevertheless, we have previously noted, AOnly where the court can see from the allegations of a pleading that, even by amendment, no cause of action can be stated consistent with the facts alleged that it can be said that the court is without jurisdiction.@ Ramirez v. Lyford Consol. Indep. Sch. Dist., 900 S.W.2d 902, 906 (Tex. App.CCorpus Christi 1995, no writ) (citing Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960)). If a petition fails to establish jurisdictional facts but does not demonstrate incurable defects, the party is to be given an opportunity to amend its petition. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); City of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 680 (Tex. App.CCorpus Christi 2004, no pet.).

We believe the defect in Martinez=s petition could be cured by a timely amendment adding as a defendant the appropriate individual in authority at the TDCJ. Accordingly, we reverse the trial court=s order denying in part the TDCJ=s plea to the jurisdiction and remand so that Martinez can have an opportunity to amend his petition.

________________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 6th day of January, 2006.