Gonzalo Artemio Lopez v. Lydia Serna and Galan G., Correctional Officers and Individually, 414 S.W.3d 890

Inmate Gonzalo Artemio Lopez sued TDCJ officers Lydia Serna and Gregory Galan for theft after they searched his cell on Dec. 14, 2011 and confiscated reading materials, leaving a TDCJ property form in his cell.
Lopez filed in forma pauperis and complied with Chapter 14 filing requirements; the trial court solicited the Attorney General’s amicus brief on Chapter 14 compliance.
The Attorney General argued dismissal was proper because, under Tex. Civ. Prac. & Rem. Code § 101.106(f) as interpreted in Franka v. Velasquez, the suit against officers acting within the scope of employment would be considered an official-capacity suit and could be barred by sovereign immunity.
Trial court dismissed Lopez’s claims under Chapter 14 (Tex. Civ. Prac. & Rem. Code § 14.003(b)(1)) as having only a slight chance of ultimate success.
Lopez appealed, arguing (1) his theft claim is not subject to § 101.106(f) because it alleges intentional theft by officers in their individual capacities, and (2) his suit is not frivolous merely because it may ultimately be barred by sovereign immunity.
The Fourth Court of Appeals affirmed, holding the officers acted within the scope of employment, Franka applies, sovereign immunity would likely bar recovery against TDCJ, and Chapter 14 authorizes sua sponte pre-service dismissal when a claim has only a slight chance of success.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §101.106(f) applies to Lopez’s theft claim	Lopez: theft is an intentional tort and officers can be sued individually; Franka should not apply	AG/defendants: officers acted within scope of employment; under Franka suit is treated as official-capacity and subject to §101.106(f)	§101.106(f) applies: officers were TDCJ employees acting within scope; claim could have been brought against TDCJ, so Franka governs
Whether Chapter 14 dismissal as frivolous was improper when sovereign immunity might later bar recovery	Lopez: a claim isn’t frivolous merely because sovereign immunity could bar ultimate recovery	Defendants: Chapter 14 permits pre-service dismissal where petition shows slight chance of success (e.g., barred by sovereign immunity)	Dismissal affirmed: under §14.003(b)(1) court may sua sponte dismiss when petition shows claim likely barred by sovereign immunity

Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (suit against employee acting within general scope of employment is considered official-capacity and may be subject to §101.106(f))
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004) (an official acts within scope if discharging duties generally assigned, even if erroneous)
Anderson v. Bessman, 365 S.W.3d 119 (Tex. App.—Houston [1st Dist.] 2011) (articulating Franka’s three-prong test for §101.106(f))
City of El Paso v. Henrich, 284 S.W.3d 366 (Tex. 2009) (limits on ultra vires claims; damages suits not available against state agency for ultra vires relief)
Salazar v. Collins, 255 S.W.3d 191 (Tex. App.—Waco 2008) (pre-Franka authority allowing individual-capacity suits against officers)
Presiado v. Sheffield, 230 S.W.3d 272 (Tex. App.—Beaumont 2007) (pre-Franka authority addressing officer liability)
Solis v. City of Laredo, 353 S.W.3d 528 (Tex. App.—San Antonio 2011) (Tort Claims Act does not waive immunity for intentional torts)