In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00356-CV
JUSTIN TYLER DAVIS, Appellant
V.
ROBIN VEGA, BILLY JACKSON, AND CARLA BURLESON, Appellees
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV24-0292
MEMORANDUM OPINION
Justin Tyler Davis, an inmate acting pro se, sued Texas Department of
Criminal Justice (“TDCJ”) employees Robin Vega, Billy Jackson, and Carla
Burleson (collectively, “Defendants” or “Appellees” or “corrections officers”)
individually under the Texas Theft Liability Act (“TTLA”) claiming they
confiscated and destroyed his property. See generally Tex. Civ. Prac. & Rem. Code
Ann. §§ 134.001–.005. The trial court granted a Plea to the Jurisdiction and
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dismissed Davis’s claims. In this appeal, Davis raises four issues challenging the
trial court’s judgment. As discussed below, we affirm the trial court’s judgment.
BACKGROUND
Davis’s Claims
On May 3, 2024, Davis filed his Original Complaint containing the allegations
described below. He requested service on the Defendants and paid for the citations.
Burleson was served on June 29, 2024, Vega was served on August 21, 2024, and
Jackson was served on August 28, 2024.
Davis, a TDCJ inmate incarcerated at the Polunsky Unit in Polk County for a
child pornography conviction, sued each defendant “individually” under the TTLA
for “their intentional and deliberate theft of numerous items” of personal property.1
Davis complained that each defendant “abused [their] official capacity to carry out
the said theft[.]” He alleged that the property was not contraband, but the Defendants
took it in violation of policy. He claimed that Burleson took that property, and she
and Vega did so in retaliation for another incident where he filed grievances against
them for similar conduct and had his property returned. Davis alleged that Vega
retaliated against him for this previous incident by instructing staff members to file
1
Davis expressly denied that he was indigent and denied bringing the action “in forma pauperis” under Texas Civil Practice and Remedies Code chapter 14, asserting that statute did not apply to his claim.
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disciplinary cases against him and harassed him. In this instance, he claimed that
Burleson removed the property from his cell, and Vega violated policy by having
him alone in her office where she told him she destroyed his property but would not
be “tied to any of it.” He also claimed that once the Defendants took his property,
they stored it in the property room where it was later “checked out” and never
returned. Specifically, he alleged that Jackson, an assistant warden, “checked out”
the property from the property room and kept it in his office before he retired.
According to Davis, upon Jackson’s retirement and while his office was being
cleaned, “Vega took the opportunity to go into the said office and steal [Davis’s]
property.” Documents in the record describe the property as women’s bodybuilding
magazines and magazines containing photographs of gymnasts. Davis asserted that
TDCJ offered to settle with him for four dollars and twenty-three cents, but Davis
refused, because he claimed the magazines were out of print and worth “hundreds”
of dollars.
On May 22, 2024, Davis filed an additional “Affidavit” attaching his
grievances and excerpts of TDCJ procedures purporting to show that the confiscated
magazines were not contraband, and the officers violated policies. Between October
2023 and March 2024, Davis filed multiple grievances with the TDCJ related to the
property’s confiscation. In the Affidavit and grievances, he complained that the
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corrections officers were prejudiced against him for “having charges of child
pornography on [his] record.” The documents included a “Disposition of
Confiscated Property Form” that noted the property contained “sexually explicit
photos/magazines with underage children.”
Pleas to the Jurisdiction and Trial Court’s Orders
On July 23, 2024, Burleson filed her Plea to the Jurisdiction, arguing that
Davis asserted a “meritless” legal theory but did not invoke Texas Civil Practice and
Remedies Code chapter 14.2 In her Plea, Burleson argued that the Texas Tort Claims
Act (“TTCA”) did not waive sovereign immunity for any intentional torts, and theft
is an intentional tort. Thus, Burleson contended that she was entitled to immunity.
Burleson also asserted that section 101.106(f) of the TTCA forecloses a claim
against governmental employees in their individual capacities if they are acting
within the scope of their authority. See id. § 101.106(f). Since the complained-of
conduct involved searching an inmate’s cell, Burleson asserted she was acting within
the scope of her official capacity and entitled to dismissal in her individual capacity.
She also argued that even if the agency was substituted as the defendant under
section 101.106(f), Davis’s claims would still fail since he alleged intentional torts.
In her Plea to the Jurisdiction, Burleson also argued that she was entitled to sovereign
2
Burleson’s counsel explained that a plea to the jurisdiction was not filed on behalf of Vega and Jackson, because they had not yet been served.
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immunity for claims brought under the TTLA. Finally, Burleson contended that
there is no independent cause of action under the Texas Constitution for taking
Davis’s property, and there is no common law cause of action for damages to enforce
a constitutional right. Burleson asked that the trial court dismiss Davis’s claims with
prejudice. The next day, July 24, 2024, the trial court granted Burleson’s Plea to the
Jurisdiction and dismissed Davis’s claims. The Order stated it was a final judgment,
dismissed all motions as moot, and it disposed of all parties and all claims. 3
On August 18, 2024, Davis filed his “Motion to Modify the Judgment and
Notice of Principal/Agent Actual Relationship.” Among other things, Davis argued
that he sued under the TTLA, so any mention of the TTCA by Defendants “is of no
consequence.” Davis also dismissed the cases Burleson relied on as opinions written
by justices “who only used ‘apparent authority’ to issue illegal rulings inconsistent
with the law.” He then attempted to distinguish the cases relied on by Burleson.
Davis disputed Burleson’s claim that the Defendants acted within their scope of
employment and that the Defendants only alleged that a “cell search” fell within
their official duties. He argued that Burleson failed to address that his property “was
later stolen from the warden[’]s office and property room.” He also contended that
3
Additionally, on September 9, 2024, after being served, Vega and Jackson filed Defendants’ Plea to the Jurisdiction, which was identical to Burleson’s. The record does not contain a signed Order on Vega’s and Jackson’s Plea to the Jurisdiction.
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Defendants’ assertions were “conclusory” and unsupported by any evidence in the
record. Davis asserted that in similar cases, where the Defendants claimed that they
acted within the scope of their employment, an evidentiary hearing is required to
allow each party to present evidence. He argued that the trial court erred by granting
immunity without holding an evidentiary hearing.
On September 9, 2024, Burleson filed Defendant’s Response to Plaintiff’s
Motion to Modify Judgment. She contended that Davis sued under the TTLA for the
alleged intentional tort of theft, which the TTCA does not allow. Accordingly,
Burleson argued that the judgment should not be modified. On September 11, 2024,
the trial court denied Davis’s Motion to Modify the Judgment. Davis timely
appealed.
STANDARD OF REVIEW AND APPLICABLE LAW
“A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004) (citation omitted); see City of Dallas v. Carbajal, 324 S.W.3d 537, 538
(Tex. 2010) (per curiam). “Subject matter jurisdiction is essential to the authority of
a court to decide a case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
443 (Tex. 1993). Governmental immunity from suit defeats a trial court’s subject
matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of
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Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Since the
existence of subject matter jurisdiction is a question of law, we review a trial court’s
ruling on a plea to the jurisdiction de novo. See Hous. Belt & Terminal Ry. Co. v.
City of Hous., 487 S.W.3d 154, 160 (Tex. 2016).
“The TTCA provides a limited waiver of governmental immunity.” Alexander
v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (citing Tex. Civ. Prac. & Rem.
Code Ann. § 101.023).
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee
acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas
law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021. The TTCA does not waive claims for
intentional torts, like theft. See id. § 101.057(2); see also Mason v. Wood, No. 09–
12–00246–CV, 2013 WL 1088735, at *2 (Tex. App.—Beaumont Mar. 14, 2013, no
pet.) (mem. op.) (citations omitted). “There is no waiver of immunity under the
Texas Theft Liability Act, and the Texas Tort Claims Act expressly does not waive
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immunity for intentional torts.” Lopez v. Serna, 414 S.W.3d 890, 896 (Tex. App.—
San Antonio 2013, no pet.) (citation omitted).
Section 101.106(f) of the TTCA contains an election-of-remedies provision
stating that
[i]f a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and
if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date
the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). “In other words, suit is completely
foreclosed against a government employee when sued in his individual capacity if
he is acting within the scope of his employment.” Sheedy v. Frederick, No. 01-22-00663-CV, 2023 WL 8459494, at *6 (Tex. App.—Houston [1st Dist.] Dec. 7, 2023,
pet. denied) (mem. op.) (citing Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex.
2011)). Under “subsection (f), a suit against a government employee acting within
the scope of employment that could have been brought under the TTCA—meaning
the plaintiff had a tort claim to assert against the government—is considered to have
been brought against the governmental unit, not the employee.” Tex. Adjutant
General’s Off. v. Ngakoue, 408 S.W.3d 350, 356–57 (Tex. 2013). “[I]n enacting
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subsection (f), the Legislature ‘foreclose[d] suit [under the TTCA] against a
government employee in his individual capacity if he was acting within the scope of
employment.’” Id. at 357 (quoting Franka, 332 S.W.3d at 381).
“Application of the TTCA’s election-of-remedies provision requires a
determination as to ‘whether an employee acted independently and is thus solely
liable, or acted within the general scope of his or her employment such that the
governmental unit is vicariously liable.’” Alexander, 435 S.W.3d at 790 (quoting
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.
2008)). Under the TTCA, “scope of employment” is defined as “the performance
for a governmental unit of the duties of an employee’s office or employment and
includes being in or about the performance of a task lawfully assigned to an
employee by competent authority.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5);
see Alexander, 435 S.W.3d at 790 (citation omitted). Said differently, “‘[a]n
employee’s act is not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to serve any purpose
of the employer.’” Alexander, 435 S.W.3d at 792 (quoting Restatement (Third) of
Agency § 7.07(2) (2006)). “The scope-of-employment analysis [is] fundamentally
objective: Is there a connection between the employee’s job duties and the alleged
tortious conduct?” Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). This
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connection can exist “even if the employee performs negligently or is motivated by
ulterior motives or personal animus so long as the conduct itself was pursuant to her
job responsibilities.” Id.
ANALYSIS
Issues One, Three, and Four: Immunity
In issues one, three, and four, Davis challenges the trial court’s granting of the
Plea to the Jurisdiction.4 In issue one, Davis contends that the TTLA was a proper
cause of action for theft of an inmate’s property under these circumstances.
First, he relies on Johnson v. Venable, a decision from our sister court in
Amarillo. See No. 07-13-00007-CV, 2013 WL 2609590, at *1 (Tex. App.—
Amarillo May 31, 2013, no pet.) (mem. op.). In that case, the trial court dismissed
the inmate’s cause of action for “failure to state a cause of action,” in essence
determining that the matter was frivolous. See id. It also involved the inmate
appearing in forma pauperis, which meant the lawsuit filed by the inmate in the trial
court was governed by chapter 14. See id.; see also Tex. Civ. Prac. & Rem. Code
Ann. §§ 14.002 (defining scope of chapter 14), 14.003 (outlining when a trial court
may dismiss a claim under chapter 14). The Amarillo Court determined that where
Johnson alleged that officers removed his property without justification and never
4
We address Davis’s issues in this order for purposes of clarity and organization.
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returned it, he asserted an arguable cause of action under the Theft Liability Act. See
Johnson, 2013 WL 2609590, at *2.
Davis’s reliance on Johnson is problematic for three reasons. First, chapter 14
applied to Johnson’s trial court action. See id. at *1–2. That was not the case here.
In the trial court, Davis expressly disavowed chapter 14’s applicability, he did not
file an affidavit or unsworn declaration of inability to pay costs in the trial court, and
he paid his own trial court filing fees. See Tex. Civ. Prac. & Rem. Code Ann. §
14.002(a) (stating that chapter 14 applies to actions brought by an inmate in which
an affidavit or unsworn declaration of inability to pay costs is filed by the inmate).
Second, the trial court here did not state it dismissed the matter for failure to state a
cause of action. The trial court in Davis’s case did not specify the basis on which it
granted the officers’ pleas to the jurisdiction. Third, and finally, the Amarillo court
did not address the applicability of any type of immunity or section 101.106(f),
rather it only determined that the trial court’s stated basis for dismissal was improper
given Johnson’s pleadings. See Johnson, 2013 WL 2609590, at *1–2. We conclude
that Davis’s reliance on Johnson v. Venable is misplaced for these reasons. His
reliance on Camacho v. Rosales is unavailing for the same reasons. See 511 S.W.3d
82, 84–85, 87 (Tex. App.—El Paso 2014, no pet.) (explaining that trial court erred
by dismissing claim of inmate who appeared in forma pauperis in the trial court
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under chapter 14 as frivolous where he pleaded a cognizable cause of action under
the TTLA).
Davis next cites an earlier case from this Court, Presiado v. Sheffield, for the
proposition that he may pursue a state-law claim for intentional torts against the
officers in their individual capacities. See 230 S.W.3d 272, 275 (Tex. App.—
Beaumont 2005, no pet.). We previously rejected a similar argument and explained
that “Presiado does not address the application of section 101.106(f) of the Civil
Practice and Remedies Code.” Mason, 2013 WL 1088735, at *2 (citation omitted).
The other case law Davis cites for this proposition is inapposite for the same reason.
“A plaintiff cannot, through artful pleading, make a common law tort claim a
statutory claim under the Theft Liability Act.” Id. at *3. We hold that the TTLA does
not contain a waiver of immunity for Davis’s theft claim nor does the TTCA contain
a waiver for intentional torts, including theft. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.021, 101.057(2), 134.001–.005; Mason, 2013 WL 1088735, at *2; see also
Sheedy, 2023 WL 8459494, at *6 (concluding that since the TTCA does not waive
immunity for intentional torts, appellant’s pleadings did not demonstrate a waiver of
sovereign immunity for his claim against appellees in their official capacities). We
overrule issue one.
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In issue three, Davis argues the officers acted outside the scope of their
employment, so they are not entitled to immunity. On appeal, he asserts that the
officers “wrongfully seized legitimate property that they knew was not contraband .
. . then later removed it from the property room in violation of policy” and claimed
that “their acts were personally motivated and independent courses of conduct not
authorized by their employer.” He cites several cases for the proposition that they
were not entitled to immunity, but they do not apply. See Telthorster v. Tunnell, 92
S.W.3d 457, 459 (Tex. 2002) (addressing official immunity and determining the
good faith standard to apply when a suspect sues a police officer for injuries
sustained in an arrest but did not involve election-of-remedies provision); Sanchez
v. Boone, 579 S.W.3d 526, 534 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)
(distinguishing the confiscation of a wedding band from contraband and noting that
officers had to establish “good faith” for that item); Reece v. Johnson, No. 10-12-00077-CV, 2013 WL 4511930, at *1, 4–5 (Tex. App.—Waco Aug. 22, 2013, no
pet.) (mem. op.) (involving dismissal under chapter 14 as frivolous, including a
TTLA claim and involving destruction of food items, paper, and stamps without
turning them into property room);
The corrections officers are all TDCJ employees, which is a state agency.
More importantly, Davis affirmatively alleged in his Original Complaint that the
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officers “abused [their] official capacity to carry out the said theft[.]” Additionally,
the Administrative Directive regarding Offender Property that he provided in the
trial court states,
The TDCJ shall establish procedures for personal and TDCJ-issued
property an offender is authorized to possess or obtain while in the
custody of the TDCJ, as well as regulations for the storage and transfer
of offender property. An offender who chooses to possess property
while in the custody of the TDCJ consents to TDCJ rules and
regulations regarding the acquisition, possession, storage, and
disposition of the property. Contraband shall be confiscated and
disposed of in accordance with procedures in this directive.
The evidence provided by Davis in the form of his grievances, established that the
officers claimed to have confiscated the materials after he was placed on a “Mail
Watch List” for the “Safe Prisons Department,” although Davis disputed that the
confiscated materials violated policy. The allegations of specific tortious conduct in
the confiscation of the magazines relate to tasks lawfully assigned to corrections
officers—searching inmate cells, confiscating contraband, processing grievances,
property storage, and property disposition. See Demar v. Garcia, No. 13-19-00182-CV, 2020 WL 3396602, at *3 (Tex. App.—Corpus Christi-Edinburg June 18, 2020,
no pet.) (mem. op.) (noting that tasks assigned to correctional officers included
searching inmate cells, confiscating contraband, and processing grievances). The
corrections officers’ tortious conduct as alleged by Davis was connected to their job
duties, even if they erred when carrying out those duties or acted with personal
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animus or ulterior motives. See Laverie, 517 S.W.3d at 753; Lopez, 414 S.W.3d at
895 (noting that “officers were acting within their legal authority to confiscate
property determined to be in violation of TDCJ policy”); see also Anderson v.
Bessman, 365 S.W.3d 119, 125–26 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“So long as it falls within the duties assigned, an employee’s conduct is ‘within the
scope of employment,’ even if done in part to serve the purposes of the employee or
a third person.”).
We hold that since the officers acted within the scope of their employment,
under the election-of-remedies provision, suit is deemed to be against the
governmental unit, and suit is foreclosed against them in their individual capacities.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Ngakoue, 408 S.W.3d at 356–
57; Franka, 332 S.W.3d at 381. We overrule issue three.
In issue four, he challenges the trial judge’s authority to dismiss this case and
argues that it acted unlawfully by doing so. The Texas Constitution provides that
“The judicial power of this State shall be vested in one Supreme Court, one Court of
Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in
Commissioners Courts, in Courts of Justices of the Peace, and in such other courts
as may be provided by law.” Tex. Const. art. V, § 1. The Texas Constitution also
provides that each judicial district shall have at least one judge who “shall be elected
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by qualified voters in a general election.” See id. § 7(a), (b). A court’s inherent
judicial power “is not derived from legislative grant or specific constitutional
provision, but from the very fact that the court has been created and charged by the
constitution with certain duties and responsibilities. The inherent powers of a court
are those which it may call upon to aid in the exercise of its jurisdiction[.]”
Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1978). Among other
things, the Code of Judicial Conduct requires that “[a] judge shall hear and decide
matters assigned to the judge[,]” “should be faithful to the law[,]” and “should
dispose of all judicial matters promptly, efficiently, and fairly.” Tex. Code Jud.
Conduct, Canon 3 (B)(1), (2), and (9).
A trial court must determine at its earliest opportunity whether it has the
constitutional or statutory authority to decide a case before allowing litigation to
proceed. See Miranda, 133 S.W.3d at 226. As explained above, there was no waiver
of governmental immunity in this case, so the trial court lacked jurisdiction to
proceed. See id. at 225–26. The trial judge had a duty to decide this matter, to follow
the law, and dispose of the case when he determined he lacked jurisdiction. See Tex.
Code Jud. Conduct, Canon 3(B)(1), (2), and (9). We hold the trial judge had the
authority to rule on the Plea to the Jurisdiction in this case. See Tex. Const. art. V,
§§ 1, 7; Eichelberger, 582 S.W.2d at 398–99. We overrule issue four.
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Issue Two: Hearing
In his second issue, Davis complains that the trial court erred by determining
his Plea to the Jurisdiction without an evidentiary hearing. All the cases Davis cites
in support of this proposition concern dismissals under chapter 14. We have already
explained above that chapter 14 did not apply to Davis’s trial court proceedings, as
he expressly disavowed proceeding in forma pauperis, did not file an affidavit of
indigence, and paid his own filing fees. Those cases are thus distinguishable.
An evidentiary hearing is not required on a plea to the jurisdiction. See Vernco
Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015) (“The trial court can rule
on a jurisdictional plea by submission or after an evidentiary hearing[.]”); Bishop v.
Chappell Hill Serv. Co., LLC, No. 01-14-00360-CV, 2015 WL 4591682, at *3 (Tex.
App.—Houston [1st Dist.] July 30, 2015, no pet.) (mem. op.). Instead, the law
requires a trial court to consider evidence produced by the parties when necessary.
See City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 (Tex. 2009) (citations
omitted); Bishop, 2015 WL 4591682, at *3. As noted above, Davis affirmatively
pleaded that the officers “abused [their] official capacity[,]” which would have
negated jurisdiction as he concedes they were operating within that official capacity.
That said, the trial court said that it reviewed the evidence submitted, which is what
the law requires when necessary. See Kirwan, 298 S.W.3d at 621–22; Bishop, 2015
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WL 4591682, at *3. We conclude Davis was not entitled to an evidentiary hearing.
See Kirwan, 298 S.W.3d at 621–22; Bishop, 2015 WL 4591682, at *3. We overrule
issue two.
CONCLUSION
Having overruled each of Davis’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on June 4, 2026
Opinion Delivered October 15, 2026
Before Golemon, C.J., Johnson and Wright, JJ.
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