Opinion

CV5-402

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00402-CV

N. E. Carrio, Appellant

v.

Policy Council, Texas Department of Criminal Justice; Texas Board of Criminal Justice;

Texas Department of Criminal Justice; and Texas Department of

Criminal Justice--Institutional Division, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. 95-01408, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

PER CURIAM

N. E. Carrio appeals from the trial-court order dismissing as frivolous his lawsuit

challenging the non-smoking policy apparently (1) applied to inmates of the Texas Department of

Corrections--Institutional Division. Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (a)(2) (West

Supp. 1996) (the Code). (2) In three points of error, Carrio contends that the trial court abused its

discretion in dismissing the suit: (1) without a fact-finding hearing; (2) without issuing subpoenas

for "hostile" witnesses; and (3) without applying "controlling law to established (uncontroverted)

facts of the case." We will affirm the trial-court order.

Dismissal as Frivolous

The appellate court reviews a dismissal under section 13.001(a)(2) (3) using an abuse

of discretion standard. Pedraza v. Tibbs, 826 S.W.2d 695, 698-99 (Tex. App.--Houston [1st

Dist.] 1992, writ dism'd w.o.j.); Johnson v. Peterson, 799 S.W.2d 345, 346 (Tex. App.--Houston

[14th Dist.] 1990, no writ). A trial court abuses its discretion when it acts in an arbitrary and

unreasonable manner, or when it acts without reference to any guiding principles. Beaumont

Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).

A trial court may dismiss an action as frivolous at any time. Code, § 13.001(c);

Kendrick v. Lynaugh, 804 S.W.2d 153, 154 (Tex. App.--Houston [14th Dist.] 1990, no writ). The

court may dismiss without notice or an opportunity to amend. Peterson, 799 S.W.2d at 347 . It

may dismiss without a hearing, unless fact-finding is necessary under the "no arguable basis in

fact" prong of section 13.001(b)(2). Thomas v. Holder, 836 S.W.2d 351, 352 (Tex. App.--Tyler

1992, no writ); Houston Dairy, 813 S.W.2d at 239.

Although it is somewhat difficult to decipher Carrio's exact cause or causes of

action, he basically seems to ask for a declaratory judgment that the non-smoking policy

promulgated by appellees is illegal. However, appellees are all state agencies and asserted

governmental immunity in their answer and motion to dismiss. We need interpret Carrio's

pleadings only to the degree necessary to decide whether he has plead any cause not barred by

governmental immunity.

Governmental Immunity

The state, as sovereign, is immune from suit unless it gives its permission to be

sued. Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970);

Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 594-96 (Tex. App.--Austin 1991, writ

denied). A party must have legislative consent or statutory authorization before it can maintain

a suit and recover a judgment that will operate to control state action, subject the state to liability,

or affect the state's property rights and interests. Director of the Dep't of Agric. & Env't v.

Printing Indus. Ass'n, 600 S.W.2d 264 (Tex. 1980); Bagg v. University of Texas Medical Branch,

776 S.W.2d 582, 584 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Governmental

immunity extends to all agencies, political subdivisions, and other institutions which are derived

from the state constitution and laws. Dillard, 806 S.W.2d at 589 .

Actions of a state official that are unconstitutional, illegal, wrongful, or beyond

statutory authority are not protected by governmental immunity and a suit seeking relief from the

official's conduct is not one against the state. Oxford v. Hill, 558 S.W.2d 557, 560 (Tex. Civ.

App.--Austin 1977, writ ref'd); Dillard , 806 at 596-98. However, the proper remedy is for a party to sue the official in authority at the governmental unit and not the governmental unit

itself. Dillard , 806 at 598; Bagg, 726 S.W.2d at 584-85. Carrio has sued only governmental

units and thus has not overcome governmental immunity.

Carrio also tries to bring this under the Texas Tort Claims Act. Tex. Civ. Prac.

& Rem. Code Ann. §§ 101.001 - 101.109 (West 1986 & Supp. 1996). To do so, his claim must

have arisen from the condition or use of tangible personal property and must be actionable were

the State a private person. Id. at 101 .021(2). Plaintiff's pleadings concern only the promulgation

of a policy. Policy creation is a discretionary function not subject to the Tort Claims Act. Id.

at § 101.056; see State v. Terrell, 588 S.W.2d 784, 787-88 (Tex. 1979); Tanner v. East Texas

Mental Health, Inc., 889 S.W.2d 3, 5 (Tex. App.--Tyler 1994, no writ); Eakle v. Texas Dept. of

Human Services, 815 S.W.2d 869, 874 (Tex. App.--Austin 1991, writ denied).

Appellant sued the State through several of its agencies without demonstrating that

he has overcome the barrier of governmental immunity. The trial court did not abuse its

discretion in dismissing as frivolous a suit that on its face is completely barred. Because we are

overruling appellant's points of error one and three asserting that the court erred in dismissing his

suit, we need not consider the issue raised in point two concerning witnesses.

We affirm the trial-court order.

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: March 20, 1996

Do Not Publish

1. Appellant alleges the existence and future implementation of this policy, apparently

based on press conferences or press releases. He cites no formal rule or order promulgated by

any of the appellees that implements this policy.

2. Appellant is incarcerated in the Texas Department of Criminal Justice, Institutional

Division. We note that statutory provisions specifically covering inmate litigation have been

enacted. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (West Supp. 1996). These

provisions, however, apply only to causes of action that accrued on or after the effective date

of the act, June 8, 1995. Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 10, 1995 Tex.

Gen. Laws 2927 .

3. We will assume that the cause was dismissed under Code § 13.001(b)(2) for having no

arguable basis in law or fact. For a discussion of the viability of the other two prongs of

§ 13.001(b) see Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990); Spellmon v. Sweeney,

819 S.W.2d 206, 208 (Tex. App.--Waco 1991, no writ); Birdo v. Ament, 814 S.W.2d 808,

809-10 (Tex. App.--Waco 1991, writ denied); McDonald v. Houston Dairy, 813 S.W.2d 238,

239 (Tex. App.--Houston [1st Dist.] 1991, no writ).