McKenzie, Freddie Lee v. Texas Department of Criminal Justice- Institutional Division ( 2000 )

NUMBER 13-99-260-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

FREDDIE LEE MCKENZIE, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE - INSTITUTIONAL DIVISION, ET AL., Appellees.

___________________________________________________________________

On appeal from the 12th District Court

of Walker County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yañez, and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant is an inmate in the Institutional Division of the Texas Department of Criminal Justice. (TDCJ-ID) He sued TDCJ-ID, together with various present and past employees of the division, to wit, Hector Ortiz, Jesus N. Petalta, Shannon Gillis, John French, Willie King, Al Losack, Morris Jones, Gary Johnson, and an unnamed defendant for whom he left a blank space in his pleadings. He alleges harassment, retaliation, gross negligence, wanton disregard which caused him "mental anguish, hypertension, and bad nerves problems." Specifically, he alleges that the wrongful acts of appellees were in retaliation for his reporting to the prison authorities the destruction of some of his personal property (head phones) during the course of an inspection of his cell.

Appellant seeks $25,000 in actual damages and $300,000 in punitive damages from each appellee. Appellant's suit is pro se and, while his pleadings contain many spelling and punctuation errors, they, nevertheless, convey a reasonable narrative of what he says happened.

The trial judge entered an order, and ruled as follows:

On this fourth day of March, 1999, the aforementioned cause of action came before the court for an evidentiary hearing. The Court, after considering the pleadings and the oral arguments, finds that the plaintiff's complaint failed to fully comply with Section 101.101(a) of the Texas Tort Claims Act.[⁽²⁾]

It is hereby ORDERED that plaintiff McKenzie's complaint be DISMISSED.

It is further ORDERED that any and all claims brought by plaintiff McKenzie against defendants are hereby dismissed with prejudice.

Any further relief not granted expressly herein is denied.

Appellant, in his brief to this court, replies that Section 101.101(c) nullifies Section 101.101(a). The pertinent portions of the notice article thus read:

101.101 Notice

A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

The damage or injury claimed;

The time and place of the incident; and

The incident.

. . .

The notice requirements provided or ratified and approved by subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.

Appellant's original pleading alleges, "the defendants had actual notice of tehmental (sic) anguish suffered and the property famage (sic), . . . ." This language is not sufficiently detailed in order to make unnecessary the notice required in Section 101.101(a). To constitute actual notice as an exception to Section 101.101(a) the governmental unit must have knowledge of the injury, its alleged or possible fault producing or contributing to the injury and the identity of the persons injured. Parrish v. Brooks, 856 S.W.2d 522, 525 (Tex. App.--Texarkana, 1993, writ denied). Mere notice that an incident has occurred is not enough to establish actual notice. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995).

Garcia v. Texas Dept. Of Criminal Justice, 902 S.W.2d 728, 730-31 (Tex. App.--Houston [14^th Dist.] 1995, no writ), sets out the proper definition of actual notice, as follows:

Appellant, however, alleges that this case falls within the exception to the six month notice rule. Specifically, she asserts that a condolence letter sent to her from the TDC on June 24, 1991, indicates the TDC had "actual notice" of the incident within the meaning of 101.101(c) of the Texas Tort Claims Act. We disagree. To constitute actual notice as an exception to 101.101(a), the governmental unit must have knowledge of a death or injury, its alleged fault producing or contributing to the death or injury, and the identity of the parties involved. Cathey v. Booth, 900 S.W.2d 339, 339 (1995); Parrish v. Brooks, 856 S.W.2d 522, 525 (Tex. App. -- Texarkana 1993, writ denied). Thus, actual notice means the governmental unit must have essentially the same knowledge it would have had if appellant had complied with 101.101(a).

We AFFIRM the judgment of the trial court in dismissing appellant's complaints and claims.

NOAH KENNEDY

Retired Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 23rd day of March, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX. Gov't Code Ann. 74.003 (Vernon 1988).

2. Tex. Civ. Practices & Remedies Code Ann., Chapter 101 (Vernon 1997).