Donald Lee Loosier v. Ernest H. Guterrez, Samuel Hughes, Robert Jenkins, Darrell Luker, and Maria Luna--Appeal from 278th District Court of Walker County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00039-CV

Donald Lee Loosier,

Appellant

v.

ERNEST Guterrez, Samuel Hughes,

Robert Jenkins, Darrell Luker,

and Maria Luna,

Appellees

From the 278th District Court

Walker County, Texas

Trial Court No. 23565

MEMORANDUM Opinion

Donald Lee Loosier, a Texas inmate, filed an in forma pauperis lawsuit against several employees of the Texas Department of Criminal Justice, under the Texas Theft Liability Act and section 31.03 of the Penal Code. The TDCJ filed an amicus curiae reply requesting dismissal of the suit. The trial court dismissed the suit, with prejudice, as frivolous under Chapter 14 of the Civil Practice and Remedies Code. On appeal, Loosier challenges whether: (1) his suit has an arguable basis in law; and (2) the trial court erred by failing to appoint counsel.[1] We vacate and dismiss.

DISMISSAL

In its amicus curiae reply, the TDCJ argued that Loosier failed to comply with the requirements of sections 14.004 and 14.005 of the Civil Practice & Remedies Code, could not prevail on his claims, and had not invoked the trial court s jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon 2002) (affidavit of previous filings); see also Tex. Civ. Prac. & Rem. Code Ann. 14.005 (Vernon 2002) (affidavit regarding exhaustion of administrative remedies).

We first address jurisdiction. Subject matter jurisdiction is essential to a court s authority to decide a case. See Texas Ass n Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). It is never presumed and cannot be waived. Id. at 443-44. We may address sua sponte the issue of subject matter jurisdiction. Id. at 445-46. We do so under a de novo standard of review. See Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

The amount in controversy is determined by the plaintiff s petition. Picon Transp., Inc. v. Pomerantz, 814 S.W.2d 489, 490 (Tex. App. Dallas 1991, writ denied) (citing Richardson v. First Nat l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967)). Loosier sued for $88.80, the alleged value of his confiscated property. This amount falls below the $500 amount-in-controversy requirement for district-court subject matter jurisdiction. See Chapa v. Spivey, 999 S.W.2d 833, 836 (Tex. App. Tyler 1999, no pet.). Accordingly, the trial court did not have jurisdiction to decide the case. See id. It should have dismissed Loosier s suit for want of jurisdiction without addressing whether his suit was frivolous under Chapter 14. See Le Clair v. Wood, No. 10-04-00232-CV, 2005 Tex. App. Lexis 4257, at *6 (Tex. App. Waco June 1, 2005, pet. denied) (mem. op.) (trial court lacked jurisdiction of inmate suit that sought $314.05 for confiscated property); see also Wilkerson v. T.D.C.J.-I.D., No. 12-03-00293-CV, 2004 Tex. App. Lexis 11850, at *5 (Tex. App. Tyler Dec. 30, 2004, no pet.) (mem. op.) (trial court lacked jurisdiction of inmate suit that sought $30.92 for property damage).

Our jurisdiction of the merits of an appeal extends no further than that of the trial court from which the appeal is taken. Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App. Corpus Christi 2003, pet. denied). Because the trial court lacked subject matter jurisdiction, we do not address the merits of Loosier s issues in this appeal. See Le Clair, 2005 Tex. App. Lexis 4257, at *6; see also Wilkerson, 2004 Tex. App. Lexis 11850, at *5-6. We vacate the trial court s order and dismiss the case for want of jurisdiction. See Le Clair, 2005 Tex. App. Lexis 4257, at *6; see also Wilkerson, 2004 Tex. App. Lexis 11850, at *6; Tex. R. App. P. 43.2(e).

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Vacated and dismissed

Opinion delivered and filed February 27, 2008

[CV06]

[1] The TDCJ did not file an Appellee s brief in this proceeding.