Juan Lopez v. R. Mata, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-012-CV

JUAN LOPEZ,

Appellant

v.

R. MATA, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,094

O P I N I O N

Juan Lopez, an inmate of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), appeals from the court's dismissal of his in forma pauperis suit. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1995). Lopez alleged that R. Mata, a TDCJ-ID disciplinary captain, and S. Robertson, a TDCJ-ID correctional officer, imposed disciplinary sanctions on him when he failed to report for his work assignment even though he had a legitimate excuse. The court found that his suit was frivolous because he failed to state a cause of action. See id. We will affirm the court's judgment.

According to Lopez's petition, he did not report for his work assignment on October 4, 1994, because of injuries to his feet. He reported the injuries to Robertson, who recorded on a reporting form that Lopez had not "turned out" for work that day but failed to note the reason why. Two days later, Mata presided over a disciplinary hearing and, finding Lopez "guilty" of failing to report for his work assignment without a legitimate excuse, imposed sanctions of "thirty (30) days property and special cell restrictions (S.C.R.); forty-five (45) days commissary restriction [and] [r]educed class from Line-2 to Line-3." Lopez apparently prevailed on his administrative appeal of the sanctions, and the punishment has been set aside. In his petition, however, he claimed that he had already been damaged by Robertson's and Mata's actions.

The trial court may dismiss an in forma pauperis suit when "the claim has no arguable basis in law or in fact." See id. 13.001(b)(2); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). A claim brought on an indisputably meritless legal theory has no basis in law. Birdo, 814 S.W.2d at 810. "An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit." Id.

Lopez characterizes his suit as an "action against Prison Officials for damages." Thus, he is suing Mata and Robertson in their official capacities. Because they are employees of the State of Texas and are sued in their official capacities, sovereign immunity shields them from liability unless the immunity has been waived. See Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 738 (Tex. App. Austin 1994, writ denied); Esparza v. Diaz, 802 S.W.2d 772, 778 (Tex. App. Houston [1st Dist.] 1990, no writ). Lopez argues that Robertson's and Mata's use of the TDCJ-ID report form to record incorrect information constitutes the use of tangible personal property sufficient to waive sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. 101.021(2); City of Waco v. Hester, 805 S.W.2d 807, 814 (Tex. App. Waco 1990, writ denied). However, the use of the report is incidental to his complaint; he actually complains that the officers falsified information for use against him, causing him damages. This claim is not within the Tort Claims Act's waiver of sovereign immunity. See University of Texas Med. Branch v. York, 871 S.W.2d 175, 178-79 (Tex. 1994). Thus, Lopez has not pled a claim which defeats the sovereign immunity that Mata and Robertson enjoy as state employees.

Because Lopez has not pled a claim that is sufficient to defeat Mata's and Robertson's immunity as state employees, his suit is based on an indisputably meritless legal theory. See Birdo, 814 S.W.2d 810. Our duty is to affirm the dismissal if it was proper under any legal theory. See id. Thus, we affirm the court's order dismissing Lopez's action.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1995

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