Thomas Retzlaff v. MacK Prince DeShay, Jr., Terry R. Foster, Mary E. Carroll, John and/or Jane Doe ( 2004 )

Affirmed and Memorandum Opinion filed September 28, 2004

Affirmed and Memorandum Opinion filed September 28, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00833-CV

____________

THOMAS RETZLAFF, Appellant

V.

MACK P. DESHAY, JR., TERRY R. FOSTER, MARY E. CARROLL, JOHN and/or JANE DOE, Appellees

On Appeal from the County Court at Law No. 2 and Probate Court

Brazoria County, Texas

Trial Court Cause No. 28,404S-1

M E M O R A N D U M   O P I N I O N

Thomas Retzlaff, an inmate in the Ramsey One unit of the Texas Department of Criminal Justice, sued Mack P. Deshay, Jr., the unit=s law library supervisor, for conversion, breach of fiduciary duty, and civil rights violations.^[1]  The trial court dismissed the conversion and breach of fiduciary duty claims, and granted summary judgment for Deshay on the civil rights violation claim.  In five issues, appellant argues that (1) the trial court erred in dismissing his conversion claim for lack of jurisdiction, (2) the trial court lacked jurisdiction to dismiss his breach of fiduciary duty claim, (3) the trial court erred in granting summary judgment for Deshay on his civil rights violation claim, (4) the trial court abused its discretion in ordering the debiting of his inmate trust account to pay court costs, and (5) the trial court abused its discretion in denying his motion for a continuance.  We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Retzlaff=s claims against Deshay are all based on a series of withdrawals made from his inmate trust account between April, 1998 and August, 2001. During that time, approximately $730 was withdrawn to repay charges for legal supplies.  Although Retzlaff received the supplies, he argues that he was overcharged for them.  Retzlaff sued both Deshay and the Texas Department of Criminal Justice (TDCJ) for conversion.  The trial court granted summary judgment for the TDCJ and severed the claim against the TDCJ.^[2]

Retzlaff continued with his conversion claim against Deshay, and added claims for breach of fiduciary duty and civil rights violations.  Retzlaff claimed that the withdrawals were unlawful takings, and that destruction of his handwritten supply requests violated his due process and equal protection rights.

Deshay moved to dismiss the conversion claim, arguing that the true amount in controversy was not within the court=s jurisdiction.  The court granted the motion.  Deshay separately moved for summary judgment on the breach of fiduciary duty claim and civil rights violation claim.  The court granted the motions, dismissing the claims with prejudice.

ANALYSIS

I.        Jurisdiction over the Conversion Claim

In his second issue,^[3] Retzlaff contends the trial court erred in dismissing his conversion claim against Deshay.  The claim was dismissed based on deposition testimony by Retzlaff that indicated the amount in controversy was below the trial court=s jurisdictional limit.

A.      Suppression of the Deposition

First, Retzlaff argues the trial court abused its discretion by not holding a hearing on his motion to suppress his deposition.  However, Retzlaff has not cited any authority indicating the trial court is required to hold a hearing on a motion to suppress a deposition.  See Tex. R. Civ. P. 203.5 (lacking a requirement that the court conduct a hearing on a motion to suppress).  Further, A[u]nless required by the express language or the context of the particular rule, the term >hearing= does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court.@  Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Thus, the trial court did not abuse its discretion in failing to hold a hearing on Retzlaff=s motion to suppress the deposition.

Even if Retzlaff=s argument is construed as a failure to rule on his motion to suppress the deposition, there is no indication that he objected to the court=s refusal to rule on the motion, as required by the Rules of Appellate Procedure.  See Tex. R. App. P. 33.1(a)(2)(B).  The trial court did not abuse its discretion by not holding a hearing on Retzlaff=s motion to suppress his deposition.

B.      Amount in Controversy

Next, Retzlaff argues that he claimed sufficient damages to meet the trial court=s jurisdictional limit.  As a statutory county court, the court had jurisdiction over civil cases in which the matter in controversy exceeds $500 and is less than $100,000.  See Tex. Gov=t Code '' 25.0003(c)(1), 25.0222(a)(1).  Retzlaff claimed in his petition that he suffered $730 in damages. However, Deshay presented deposition testimony by Retzlaff that indicated the actual amount in controversy was Aabout half@ that amountCapproximately $365.

AWhen a defendant asserts that the amount in controversy is below the court=s jurisdictional limit, the plaintiff=s pleadings are determinative unless the defendant specifically alleges that the amount was pleaded merely as a sham for the purpose of wrongfully obtaining jurisdiction, or the defendant can readily establish that the amount in controversy is insufficient . . . .@^[4]  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (internal footnote omitted).  As the Texas Supreme Court has explained, we apply a standard that generally mirrors that of a summary judgment:

[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. . . .  If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.  However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.

Texas Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227B28 (Tex.  2004). Because a plaintiff is not required to prove his damages in order to support jurisdiction, the issue is not whether there is a fact question as to the actual amount of his damages; the issue is whether there is a fact question as to whether the actual amount of his damages is within the court=s jurisdictional limit.  See id.

In his deposition testimony, Retzlaff admitted that Aabout half@ of the damages he claimed were actually deducted from his inmate trust fund in exchange for indigent law supplies, and he alleged that he was charged twice as much as he should have been.^[5]  Although Retzlaff challenged the deposition on procedural grounds, he produced no evidence contradicting his testimony.  In fact, he admits in his second amended petition that he received some indigent law supplies.^[6]  Therefore, the trial court did not err in determining there was no fact question as to whether Aabout half@ of the damages were wrongly pleaded.

Retzlaff also did not dispute that reducing his claimed damages by Aabout half@ would result in an amount less than $500; he merely continued to assert that he pleaded the entire $730 as damages.  Contrary to appellant=s assertions, the trial court was not required to accept his allegation of $730 in damages as true.  See Bland, 34 S.W.3d at 554.  Thus, the trial court did not err in determining there was no fact question as to whether Retzlaff=s actual damages were less than $500.

C.      Mental Anguish Damages

Retzlaff alternatively argues that the possibility of mental anguish damages would justify jurisdiction of the trial court.  Retzlaff alleged in his petition that Deshay acted with Aill will, spite, evil motive or a purpose to injure [him],@ and that he suffered A[p]hysical pain and mental anguish in the past and future.@

This court has held that Athe modern rule provides for recovery of emotional distress damages in cases of intentional torts@ and that Aintentional injury to property will support a claim of mental anguish . . . .@  Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 756 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  However, our holding does not stand for the proposition that a conversion claim will necessarily support a claim for mental anguish.^[7]  Mental anguish requires proof of a Ahigh degree of mental pain and distress@ that is Amore than mere worry, anxiety, vexation, embarrassment, or anger.@  Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); see also Durban v. Guajardo, 79 S.W.3d 198, 208 (Tex. App.CDallas 2002, no pet.).

Retzlaff=s petition contains no allegations that would support a mental anguish recovery other that his bare assertion that he suffered mental anguish.  He does not claim to have any sentimental attachment to the allegedly converted property.  See Seminole Pipeline, 979 S.W.2d at 755 (AMental anguish stemming from the loss of property is, to some extent, contingent upon the plaintiff=s sentimental attachment to the property.@).  Nor does he offer any other explanation as to why the alleged conversion caused him a high degree or mental pain or distress.  Thus, the trial court did not err in determining that Retzlaff=s request for mental anguish damages was not a basis for jurisdiction.

D.      The Same Transaction as Other Claims

Retzlaff alternatively argues that the trial court could have exercised jurisdiction over his conversion claim because it arose from the same transaction as his Section 1983 claim and his claim for injunctive relief.  Although Retzlaff cites two cases for support, neither case supports Retzlaff=s contention that the trial court was required to exercise jurisdiction over his conversion claim.  See Andel v. Eastman Kodak Co., 400 S.W.2d 584, 586 (Tex. Civ. App.CHouston 1966, no writ); Texas City Tire Shop, Inc. v. Alexander, 333 S.W.2d 690, 693 (Tex. Civ. App.CHouston 1960, no writ).

In Texas City Tire Shop, Inc. v. Alexander, the court noted that a plaintiff may join as many claims against a defendant as he wishes, and the court will have jurisdiction over each claim if in aggregate they are within the court=s jurisdiction.  333 S.W.2d at 693.  Retzlaff argues that his conversion claim should have been considered in conjunction with his Section 1983 claim and his request for injunctive relief.  However, the court properly dismissed the Section 1983 claim,^[8] and the claim for injunctive relief does not include a monetary amount.  Therefore, neither claim provides for recovery of damages that could be aggregated with the conversion claim.

In Andel v. Eastman Kodak Co., the court held that a court that has jurisdiction over a claim also has jurisdiction over any counterclaim, even if the counterclaim is below the minimum jurisdiction of the court.  400 S.W.2d at 586.  However, that holding has been abrogated.  Under the current Rules of Civil Procedure, Acounterclaims are judged on their own merits and must independently comport with a court=s jurisdiction.@  Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 623 (Tex. App.CHouston [14th Dist.] 1995, no writ); see also Tex. R. Civ. P. 97.  Retzlaff has therefore provided no support that the trial court had ancillary or pendent jurisdiction over his conversion claim.  See Tex. R. App. P. 38.1(h).

Because the trial court did not err in determining that the amount in controversy for Retzlaff=s conversion claim was below the court=s jurisdictional limit, and because Retzlaff has provided no other basis for jurisdiction, we overrule his second issue.

II.       Jurisdiction over the Breach of Fiduciary Duty Claim

In his third issue, Retzlaff contends the trial court lacked jurisdiction over his breach of fiduciary claim against Deshay.  Initially, the trial court determined Deshay did not owe Retzlaff a fiduciary duty and dismissed the claim with prejudice.  The next day, Retzlaff moved to dismiss the claim for lack of jurisdiction, arguing that the claim concerned a trust and therefore only a district court had jurisdiction.

Generally, only district courts have jurisdiction over proceedings concerning trusts.  Tex. Prop. Code ' 115.001(a).  The exception applies only to proceedings also involving probate.  Tex. Prop. Code ' 115.001(d).  Because this proceeding does not involve probate, the exception does not apply.^[9]  Thus, if this was a proceeding concerning a trust, the trial courtCa county courtCwould lack jurisdiction.  However, we do not consider this proceeding to be one concerning a trust.

The Texas Property Code provides that Aproceedings concerning trusts@ include proceedings to:

(1)     construe a trust instrument;

(2)     determine the law applicable to a trust instrument;

(3)     appoint or remove a trustee;

(4)     determine the powers, responsibilities, duties, and liability of a trustee;

(5)     ascertain beneficiaries;

(6)     make determinations of fact affecting the administration, distribution, or duration of a trust;

(7)     determine a question arising in the administration or distribution of a trust;

(8)     relieve a trustee from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle;

(9)     require an accounting by a trustee, review trustee fees, and settle interim or final accounts;  and

(10)    surcharge a trustee.

Tex. Prop. Code ' 115.001(a).  At least one court has stated that this list is exclusive.  See Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 724 (Tex. App.CFort Worth 2004, no pet.) (ATexas courts considering section 115.001(a) and its predecessor, Texas Trust Act article 7425b‑24(A), have consistently held that those statutes provide the exclusive list of actions >concerning trusts= over which a district court has jurisdiction.@).  This proceeding, an alleged breach of fiduciary duty by a trustee, does not fall within this list.  See Tex. Prop. Code ' 115.001(a).

Even if the list is not exclusive, we do not consider this proceeding to concern a trust within the meaning of section 115.001.  Determining whether a trustee misappropriated trust property does not involve questions regarding the interpretation or operation of a trust. Simply because the misappropriated property came from a trust does not transform a proceeding into one concerning a trust.  Cf. Mobil Oil, 128 S.W.3d at 725 (AThe mere fact that a plaintiff happens to be a trustee, however, does not transform a case into one >concerning trusts.=@).  Thus, the trial court had jurisdiction over Retzlaff=s breach of fiduciary duty claim.  We overrule Retzlaff=s third issue.

III.      Section 1983 Civil Rights Violation Claim

In his fourth issue, Retzlaff contends the trial court abused its discretion in granting Deshay summary judgment on his Section 1983 civil rights violation claim. Additionally, Retzlaff contends that the trial court abused its discretion in denying his motion to reset the hearing and in denying his objections to the motion for summary judgment. We will address Retzlaff=s additional contentions first.

A.      Notice of the Hearing

Retzlaff argues that he was not provided proper notice of the summary judgment hearing. Although Retzlaff acknowledges that he received twenty-one days= notice of the hearing, he complains that the notice was not provided by Deshay himself.  However, a complaint of inadequate notice of a summary judgment hearing requires a showing of harm.  See Martin at 359; Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 710 (Tex. App.CSan Antonio 1996, writ denied).  Retzlaff has failed to explain how he was harmed because the notice was provided by someone other than Deshay.  The trial court did not abuse its discretion in denying Retzlaff=s motion to reset the hearing.

B.      Objections to the Motion for Summary Judgment

Retzlaff also raised several objections to the motion for summary judgment.  Only one objection is necessary to our disposition of the appeal, so we decline to address the others.  See Tex. R. App. P. 47.1.

In his third objection, Retzlaff objects that Deshay failed to plead the affirmative defenses of qualified immunity and failure to state a claim.  See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).  However, Deshay did plead that he was entitled to Asovereign and other immunities.@  And, failure to state a claim is not an affirmative defense.  See Tex. R. Civ. P. 94; Black=s Law Dictionary 430 (7th ed. 1999) (defining an Aaffirmative defense@ as A[a] defendant=s assertion raising new facts and arguments that, if true, will defeat the plaintiff=s . . . claim, even if all allegations in the complaint are true@).  The trial court did not abuse its discretion in overruling Retzlaff=s objection.

C.      Grounds for Summary Judgment

Finally, Retzlaff argues that the trial court abused its discretion in granting Deshay=s motion for summary judgment.  Deshay moved for summary judgment on three grounds: (1) that he is entitled to immunity under the Eleventh Amendment for claims against him in his official capacity; (2) that Retzlaff failed to state a claim regarding due access to the courts or due process violations; and (3) that Deshay is entitled to qualified immunity.^[10]  The trial court=s order did not specify the grounds relied on.  When an order granting summary judgment does not state the grounds on which it relied, we will affirm the summary judgment if any of the grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

The trial court stated during the hearing that it was granting the motion on the third ground: AI do find that he=s entitled to qualified immunity in his individual capacity because I find [Retzlaff] has failed to get past the first threshold issue of whether or not there=s been a constitutional violation under existing law.@  However, Awe cannot look to the trial court=s oral comments to change the written order.@  Richardson v. Johnson & Higgins of Texas, Inc., 905 S.W.2d 9, 11 (Tex. App.CHouston [1st Dist.] 1995, writ denied).  Therefore, because Deshay=s second ground is determinative in this case, we will address it here.^[11]

D.      Constitutional Claims

Retzlaff=s Section 1983 claim is based on allegations regarding (1) wrongful debiting of his inmate trust account and (2) spoliation of evidence. In evaluating this claim, we must therefore determine whether either allegation is a due access to the courts or a due process violation.  Neither rises to the level of a constitutional violation.

1.       Wrongful Debiting of the Inmate Trust Account

First, a prison official=s failure to follow the prison=s own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.  Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996);  Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995).  The illegal or improper debiting of an inmate trust account does not violate an inmate=s constitutional due process rights when the state provides an adequate postdeprivation remedy.  See Myers, 97 F.3d at 94; Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). 

Here, the state provides Retzlaff the adequate tort remedy of conversion for any unauthorized property deprivation he may have suffered.  See id.  Therefore, because the state provides the adequate postdeprivation remedy of conversion, Retzlaff did not establish a Section 1983 claim for wrongful debiting of his inmate trust account.

2.       Spoliation of Evidence

Second, Retzlaff has failed to state a constitutional violation for spoliation of evidence.  The due process rights of prisoners must be analyzed under the more general right of access to the courts.  See Bounds v. Smith, 430 U.S. 817, 825 (1977). Such a right Ais founded on the due process clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.@  Wolff v. McDonnell, 418 U.S. 539, 579 (1974). However, the constitutional right of access to the courts is not the right to proceed without discovery abuses. See Foster v. City of Lake Jackson, 28 F.3d 425, 430B31 (5th Cir. 1994).  Rather, due process is implicated only Awhere the ability to file suit was delayed or blocked altogether.@  Id. at 430. 

That is not the case here.  Retzlaff has generically alleged a violation of the constitutional right of access to the courts; however, he has not alleged that his ability to file suit was in any way delayed or blocked.  According to Retzlaff, Deshay destroyed Anearly all@ of his handwritten indigent supply requests that might have been used as evidence to prove his inmate trust fund account was wrongfully debited.  However, this did not delay nor prevent Retzlaff from filing suit in state court. Therefore, Retzlaff did not establish a Section 1983 claim for spoliation of evidence.

Because neither Retzlaff=s wrongful debiting or spoliation of evidence allegations rises to the level of a constitutional violation, the trial court did not err in dismissing his Section 1983 claim.  We overrule Retzlaff=s fourth issue.

IV.      Court Fees

In his fifth issue, Retzlaff contends the trial court abused its discretion by ordering his inmate trust fund account debited pursuant to Chapter 14 of the Civil Practices and Remedies Code, which provides that A[a] court may order an inmate who has filed a claim to pay court fees, court costs, and other costs . . . .@  Tex. Civ. Prac. & Rem. Code ' 14.006(a).  Chapter 14 Aapplies only to a suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.@  Tex. Civ. Prac. & Rem. Code ' 14.002(a).  Retzlaff filed an affidavit of inability to pay costs, and therefore appears to be subject to Chapter 14.

Retzlaff argues that he should not be subject to Chapter 14 because he fully prepaid the filing costs of the lawsuit before filing his affidavit of inability to pay costs.  However, the section on which Retzlaff reliesCsection 14.002Ccontains no limitation based on when the affidavit of inability to pay costs was filed.  See id.  Retzlaff has not cited any case in which Chapter 14 was held to be inapplicable because of when the affidavit of inability to pay costs was filed.  Nor do we feel that the intent of the legislature in drafting the chapter would be furthered by allowing it to be so easily circumvented.  See Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.CWaco 1996, no writ) (AWe believe that Chapter Fourteen was designed to control the flood of frivolous lawsuits being filed in the courts of this State by prison inmates, consuming valuable judicial resources with little offsetting benefit.@).  Therefore, we hold that the determinative fact is that an affidavit of inability to pay costs was filedCnot when the affidavit was filed.  We overrule Retzlaff=s fifth issue.

V.      Motion for Continuance

In his sixth issue, Retzlaff contends the trial court abused its discretion by denying his motion for continuance, which was filed on the day of trial.  In an attached affidavit Retzlaff stated that he was denied access to the prison law library on the day before trial, even though he had a permission slip supposedly granting him access.  Retzlaff stated that because he was denied access to the library, he was unable to properly prepare for court.

The decision to grant or deny a motion for continuance is within the trial court=s discretion.  In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  We will reverse the trial court=s decision only upon showing of a clear abuse of discretion.  Id.  A trial court abuses its discretion only when it acts Awithout reference to any guiding rules and principles.@  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).

Based on the record, the trial court did not abuse its discretion in denying Retzlaff=s motion for continuance.  Retzlaff was notified of the trial date more than four months earlier. Retzlaff argued that he had Aseveral last minute things to research,@ but never clarified what those things were. Retzlaff stated that he scheduled the day before trial for legal research, but did not argue that he was surprised or otherwise explain why he chose to wait until the day before trial to perform research.  We do not condone a plaintiff=s decision to wait until the day before trial to perform research on his case.  See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (stating that it would be Amanifestly improper@ to grant a party=s motion for continuance based on Aa predicament of its own making@).  The trial court did not abuse its discretion in determining that there was not sufficient cause for a continuance.  See Cronen v. Nix, 611 S.W.2d 651, 653 (Tex. Civ. App.CHouston [1st Dist.] 1980, writ ref=d n.r.e.) (ADenial of a motion for continuance based on lack of time to prepare for trial is not an abuse of discretion.@) We overrule Retzlaff=s sixth issue.

We affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

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^[1]  Retzlaff also sued various other parties in the same proceeding, but they are not a part of this appeal.

^[2]  Our sister court upheld the summary judgment for the TDCJ in Retzlaff v. Texas Dep=t. of Criminal Justice, 135 S.W.3d 731 (Tex. App.CHouston [1st Dist.] 2003, no pet. ).

^[3]  Retzlaff struck his first and seventh issues from his brief in order to comply with the page limit requirement.  See Tex. R. App. P. 38.4.  We will refer to Retzlaff=s issues as he refers to them in his brief.

^[4]  Retzlaff relies on Delk v. City of Dallas for the proposition that Deshay was required to prove that Retzlaff=s damages were Afraudulently made for the purpose of conferring jurisdiction.@  560 S.W.2d 519, 520 (Tex. Civ. App.CTexarkana 1977, no writ).  Under Bland, however, Deshay can also meet his burden if he can Areadily establish that the amount in controversy is insufficient.@  34 S.W.3d at 554.

^[5]  The deposition testimony was as follows:

Q:         Well, then, let me ask you something: Of this $700 that you're disputing, how much of it do you admit to using?

A:         I would think about half.

Q:         Okay.  And again, that=s just based on your assumption that for two months that you paid attention, you were charged twice as much as you should have been; and so, now you=re going to assume that from the time going all the way back to 1998 you were consistently charged twice of what you should have been charged?

A:         Well, I think if somebody=s going to do me wrong once or twice, they might have done me wrong the whole time.    

^[6]  Retzlaff states in his second amended petition: AWhile plaintiff does not dispute that he did, in fact, receive some indigent law library supplies from time to time, he does dispute the fact that he requested and received apx. $730.00 worth of indigent supplies.@

^[7]  In fact, as the Austin Court of Appeals has recently noted, ATexas courts have refused to award mental anguish damages for conversion.@  Petco Animal Supplies, Inc. v. Schuster, No. 03‑03‑00354‑CV, 2004 WL 903930, at *10 n.9 (Tex. App.CAustin, Apr. 29, 2004, no pet.).

^[8]  We discuss the dismissal of the Section 1983 claim in Section III, infra.

^[9]  Because the cases cited by Retzlaff do involve probate, they are inapposite.  See In re Stark, 126 S.W.3d 635 (Tex. App.CBeaumont 2004, no pet.); Green v. Watson, 860 S.W.2d 238 (Tex. App.CAustin 1993, no writ).

^[10]  Retzlaff conceded that the first ground was correct, and that Deshay could not be sued under Section 1983 in his official capacity. Thus, the question before the court was whether either the second or third ground would prevent suit against Deshay in his personal capacity.

^[11]  Additionally, an inquiry as to whether a plaintiff stated a constitutional claim is a necessary element of determining whether qualified immunity exists.  See Saucier v. Katz, 533 U.S. 194, 201 (2001) (AA court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer=s conduct violated a constitutional right?  This must be the initial inquiry.@).  Thus, a determination of Deshay=s second ground would be necessary in order to resolve his third ground in any event.