Texas Department of Criminal Justice v. Tomas Avellaneda and Victoria Luviano De Avellaneda ( 2006 )

Opinion filed May 4, 2006

Opinion filed May 4, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00414-CV

                                                     __________

              TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant

                                                             V.

                                       TOMAS AVELLANEDA AND

                    VICTORIA LUVIANO DE AVELLANEDA, Appellees

                                         On Appeal from the 259th District Court

                                                          Jones County, Texas

                                                    Trial Court Cause No. 18838

                                             M E M O R A N D U M   O P I N I O N

This is an interlocutory appeal in a lawsuit filed against the Texas Department of Criminal Justice (the Department).  Appellees= son, Daniel Miguel Avellaneda, was an inmate at the Department=s French Robertson Unit in Abilene.  Neal Dean Harms, a guard at the unit, fatally shot Avellaneda on July 8, 1996, during an incident which occurred in a field at the unit.  The Department contends that the trial court erred in denying its plea to the jurisdiction.  We dismiss in part and reverse and render in part.

                                                               Procedural History

The Department filed two pleas to the jurisdiction in the underlying proceedings.  The Department filed the first plea to the jurisdiction on January 4, 2005.  The trial court forwarded a letter to the attorneys of record on October 21, 2005, denying the first plea to the jurisdiction.  The Department filed its second plea to the jurisdiction on November 3, 2005.  The trial court denied the second plea to the jurisdiction in two written orders entered on December 8 and 13, 2005.  The Department filed its notice of appeal with respect to the denial of the second plea to the jurisdiction on December 27, 2005.

                             Appellees= Motion to Dismiss Appeal For Want of Jurisdiction

Appellees have filed a motion to dismiss this appeal on jurisdictional grounds.  They contend that the Department did not timely perfect an appeal of its jurisdictional claims because it did not appeal the denial of the first plea to the jurisdiction.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2005) permits an interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a governmental unit. An interlocutory appeal is accelerated under Tex. R. App. P. 28.1.   Accordingly, the notice of appeal in an interlocutory appeal must be filed within twenty days after the interlocutory order is signed.  Tex. R. App. P. 26.1(b).

The Fort Worth Court of Appeals dealt with a similar situation in Denton County v. Huther, 43 S.W.3d 665 (Tex. App.CFort Worth 2001, no pet.).  The trial court partially denied pleas to the jurisdiction filed by governmental units in Huther on May 10, 2000.  Id. at 666.  The governmental units did not file an interlocutory appeal of the order denying their initial pleas to the jurisdiction.  Instead, on August 11, 2000, the governmental units filed a motion to reconsider the previously filed pleas to the jurisdiction and a renewed plea to the jurisdiction.   The trial court denied the subsequent motion in a written order entered on August 29, 2000. The governmental units filed their notice of appeal on August 31, 2000.

The court of appeals held in Huther that the governmental units were precluded from appealing the denial of their jurisdictional claims because they did not timely perfect an interlocutory appeal after the denial of their original pleas to the jurisdiction.  Id. at 667.  In reaching this holding, the court noted that the subsequent pleas to the jurisdiction presented the same grounds alleged in the initial pleas to the jurisdiction.  The court specifically rejected the governmental units= contention that they could pursue an appeal based upon subject matter jurisdiction at any time.  The court held that, irrespective of the nature of the error in the trial court proceedings, an appellate court is without jurisdiction to correct an error in the absence of a timely notice of appeal.

We agree with the rationale employed by the court in Huther.  Rule 28.1 provides that interlocutory appeals must be perfected on an accelerated basis.  Rule 28.1 further provides that filing a motion for new trial will not extend the deadline for filing an accelerated appeal.  The requirement that interlocutory appeals are to be filed within twenty days without the possibility of extending this deadline would be defeated if the party seeking to file an interlocutory appeal is permitted to appeal the trial court=s subsequent action on a motion that has simply been refiled.

                                 Did the Trial Court Enter an Appealable Order Denying

                                                   the First Plea to the Jurisdiction?

We are required to address a preliminary matter raised by the Department in response to appellees= motion to dismiss the appeal for want of jurisdiction.  The Department contends that the trial court did not enter an appealable order denying the first plea to the jurisdiction.  The trial court sent a letter to counsel of record dated October 21, 2005, which provided in relevant part as follows: ADefendant Texas Department of Criminal Justice=s Plea to the Jurisdiction and/or Motion for Dismissal for Lack of Subject Matter Jurisdiction is hereby DENIED.@  The Department cites Perdue v. Patten Corp., 142 S.W.3d 596, 601-03 (Tex. App.CAustin 2004, no pet.), for the proposition that a letter from the trial court does not constitute an appealable order.

We find Perdue to be distinguishable.  The letter ruling in Perdue requested one of the attorneys to submit a written order to the trial court for entry and filing.  The court reasoned that the letter=s directive for counsel to submit an order indicated that the trial court did not believe that the letter constituted an operative order.  Id. at 603.  In this case, the trial court=s letter did not direct counsel to submit a written order for entry in the future.

The letter ruling at issue in this appeal is analogous to the letter rulings at issue in Champion International Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898 (Tex. 1988)(orig. proceeding), and Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.CEl Paso 1990, no writ).  The letter ruling is written in present-tense language, and it does not contain a directive for counsel to prepare an order.  Furthermore, it bears a AFILED@ mark from the trial court clerk=s office. Accordingly, the trial court=s letter ruling of October 21, 2005, that denied the Department=s first plea to the jurisdiction constituted an appealable interlocutory order.

                                          Comparing the Two Pleas to the Jurisdiction

In its initial plea to the jurisdiction, the Department sought a dismissal of the causes of action asserted against it on the basis of sovereign immunity.  The Department alleged that it could not be sued under the Texas Tort Claims Act^[1] for the following allegations because they did not implicate the use of motor-driven equipment or property: (1) its failure to train and instruct correction officers, in particular, Harms; (2) its failure to supervise Harms=s conduct including intervening in his use of a deadly weapon when uncalled for under the circumstances; and (3) the failure to supervise other officers on the scene in order to avoid the acts complained of by appellees.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).  The Department additionally asserted that, while Harms=s use of the weapon to shoot Avellaneda involved the use of personal property, the Department has immunity for this use because Harms shot Avellaneda intentionally.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.057 (Vernon 2005).

In its second plea to the jurisdiction, the Department alleged the same contentions that it had asserted in the first plea with respect to the claims involving its supervision and training of Harms and Harms=s intentional use of the weapon to shoot Avellaneda.^[2]  There is no substantive difference in the Department=s presentation of these contentions between the two pleas to the jurisdiction.  The Department presents these contentions for our review in its second and third issues on appeal.  We do not have jurisdiction to consider these issues because the Department did not timely file an interlocutory appeal of the trial court=s first order.  See Rules 26.1(b), 28.1.  Accordingly, appellees= motion to dismiss for want of jurisdiction is granted in part.

                                                              Section 1983 Claim

The Department=s second plea to the jurisdiction contained an additional contention that was not included in the first plea to the jurisdiction. This claim involved an allegation that Harms used excessive force against Avellaneda and that such use constituted cruel and unusual punishment.  See U.S. Const. amend. VIII.  Appellees assert this claim under 42 U.S.C. ' 1983 against both the Department and Harms.  The Department asserts that it has governmental immunity that precludes suit against it under Section 1983.  The Department raises this contention in its first issue.

Appellees contend that a plea to the jurisdiction is not a proper vehicle for asserting governmental immunity to a Section 1983 claim.  We disagree. The Texas Supreme Court has specifically held that governmental immunity can be raised by a plea to the jurisdiction because, if sustained, an assertion of immunity would defeat the court=s jurisdiction.  Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). 

A governmental unit does not fall into Section 1983=s definition of a Aperson@ and is not subject to Section 1983 claims.   Will v. Mich. Dep=t of State Police, 491 U.S. 58, 71 (1989); Tex. Dep=t of Public Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001).  Thus, appellees are not permitted to assert a Section 1983 claim against the Department. The Department=s first issue is sustained.  The trial court=s order denying the Department=s request to dismiss the section 1983 claim asserted against it is reversed and rendered in favor of the Department.

                                                                         Notice

            The Department=s fourth issue addresses the notice requirement of Tex. Civ. Prac. & Rem. Code Ann. ' 101.101 (Vernon 2005).  The Department asserts that it did not have actual, subjective awareness of appellees= claims within six months of Avellaneda=s death as required by Section 101.101. Appellees respond to this contention by asserting that the notice issue is not properly before the court for our consideration.  We agree.

The Department presented the notice issue to the trial court in a motion for summary judgment that it filed prior to filing the pleas to the jurisdiction.^[3]  It subsequently referred to the notice issue in its second plea to the jurisdiction in a recitation of the events which preceded  the filing of the second plea to the jurisdiction.  While the Department made reference to the notice issue in the second plea to the jurisdiction, it did not raise the notice issue as one of its jurisdictional bases for dismissing the lawsuit.^[4]  Thus, the trial court=s orders denying the second plea to the jurisdiction do not cover the notice issue.  Since the Department is only appealing the trial court=s orders denying the second plea to the jurisdiction, we cannot consider the notice issue because the Department has not appealed an order that addresses the issue.  The Department=s fourth issue is overruled.

                                    The Department=s Motion to Stay Trial Court Setting

The Department has filed a motion to stay the setting of this case for trial on June 26, 2006, during the pendency of this appeal.  In light of the issuance of our opinion and judgment,  the motion to stay is now moot.

                                                               This Court=s Ruling

Appellees= motion to dismiss is granted in part; the motion is granted as to the Department=s jurisdictional claims that were contained in the Department=s first plea to the jurisdiction.  The trial court=s order denying the Department=s request to dismiss the Section 1983 claim is reversed, and judgment is rendered in favor of the Department as to the Section 1983 claim.  The Department=s motion to stay the trial court setting is moot.

TERRY McCALL

May 4, 2006                                                                            JUSTICE

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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^[1]Tex. Civ. Prac. & Rem. Code Ann. '' 101.001-.109 (Vernon 2005 & Supp. 2005).

^[2]We note that the Department stated as follows at the outset of its second plea to the jurisdiction: AThis Plea to the Jurisdiction is filed to clarify the record and to provide the Court with a second opportunity to review the applicable law and grant [the Department=s] Plea to the Jurisdiction.@

^[3]The parties contend that the trial court entered an order denying the motion for summary judgment. However, the clerk=s record does not contain a copy of a written order denying the motion for summary judgment.

^[4]The Texas Legislature recently added the following language to Tex. Gov=t Code Ann. ' 311.034 (Vernon Supp. 2005): AStatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.@  The Texas Supreme Court had previously held in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 354 (Tex. 2004), that the failure to provide notice under Section 101.101 does not deprive the court of subject matter jurisdiction.