Lawrence Edward Thompson v. Wayne Scott, Director Texas Department of Criminal Justice--Institutional Division

cv5-157.dd.thompson TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00157-CV Lawrence Edward Thompson, Appellant v. Wayne Scott, Director, Texas Department of Criminal Justice-- Institutional Division, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 94-14478, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING PER CURIAM Lawrence Edward Thompson appeals the trial court's dismissal of his petition for injunction. Thompson, a state prisoner, complained below on several bases about being issued unisex, flyless, pocketless pants. On Wayne Scott's motion, the trial court dismissed the case as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 1991). We will affirm the judgment. BACKGROUND Thompson is imprisoned at Texas's Ellis II Unit. In the fall of 1994, the Ellis II Unit shifted from button-fly pants with pockets to unisex, flyless, pocketless pants. The prisoners in the medical transit unit of Ellis II were the only prisoners who continued to wear button-fly, pocketed pants. Thompson claims that many prisoners in Ellis II have tested positive for the Human Immunodeficiency Virus (HIV) or have developed Acquired Immune Deficiency Syndrome as a result of HIV infection. Thompson contends that the wardrobe change injured him in many ways. He contended that the unisex pants violated his constitutional right to freedom of religion by forcing him to violate his belief, held as a member of The Lost-Found Nation of Islam under the direction of the Honorable Silis Muhammad, that men cannot wear clothes that women wear. He also alleged that the new pants denied him the right to express his manhood and exposed him to taunting, ridicule, embarrassment, emasculation, and dehumanization. He contended that the construction of the pants imperiled him in the restroom in two ways. He alleged that he had to pull his pants halfway down his legs to urinate properly, hindering his ability to defend himself from attack. He also contended that the elastic on the pants of prisoners who did not pull their pants down sufficiently tended to snap back causing them to splash urine on bystanders; this heightened his exposure to HIV. Scott moved to dismiss the case as frivolous. He stressed his immunity from suit. In his response, Thompson contended that Scott was not immune from a petition for injunctive relief against a violation of Thompson's constitutional right to freedom of religion. The court dismissed the action without stating a basis after a hearing at 9:00 a.m. on January 20, 1994. (1) We therefore do not consider the allegations made in Thompson's amended petition, filed at 1:25 p.m. on January 20, 1994. DISCUSSION By his sole point of error, Thompson contends that the trial court erred by dismissing his claim as frivolous. We review the court's dismissal for abuse of discretion. Carson v. Gomez, 841 S.W.2d 491, 494 (Tex. App.--Houston [1st Dist.] 1992, no writ); Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App.--Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). Thompson correctly asserts that his claim that the new pants violated his religious freedom survived the immunity claim. Actions of a state official that are unconstitutional, illegal, wrongful, or beyond statutory authority are not immunized by governmental immunity; also, 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). Thompson alleged that Scott's selection of the flyless pants violated Thompson's religious convictions. Thompson contended that his religious beliefs barred him from wearing clothes that women wear. He alleged that the new flyless pants were garments that women wear. Thompson sought to block the distribution of the new pants in favor of the old pants. The court did not abuse its discretion in finding that his claim did not survive the more general claim of frivolousness. We can take judicial notice of facts for the first time on appeal. Office of Public Utility Counsel v. Public Utility Commission of Texas, 878 S.W.2d 598, 600 (Tex. 1994). We hereby take judicial notice of the fact that women also wear button-fly pants with pockets. Were Thompson's requested relief granted, his condition would not improve. He would still be wearing pants that women wear. The court did not abuse its discretion in finding his claim frivolous because his requested relief would not change his condition. Scott is immune from the remainder of Thompson's complaints. Official immunity protects governmental officers who are sued in their official capacity. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). This immunity shields officers from suits against them in their individual capacity complaining of actions taken while acting within the scope of their authority and performing discretionary duties in good faith. Id. The act of deciding what type of pants prisoners will wear is clearly within the scope of Scott's office as director of the Institutional Division. Such is a discretionary duty rather than ministerial because Scott had a great deal of latitude in choice of styles. See id. Though Thompson mentioned many unpleasant effects of the new pants, he did not at the trial court and does not here state how (other than his religious objections) Scott's action was unconstitutional, illegal, wrongful, or beyond his statutory authority. The court did not abuse its discretion by finding that Scott took the action in good faith and therefore did not lose his immunity. Because the court did not abuse its discretion in finding that Thompson's complaints were either frivolous or barred by official immunity, we overrule Thompson's assignment of error. We affirm the judgment. Before Chief Justice Carroll, Justices Jones and B. A. Smith Affirmed Filed: February 7, 1996 Do Not Publish 1. The appellate record does not contain a statement of facts of this hearing. ly tended to snap back causing them to splash urine on bystanders; this heightened his exposure to HIV. Scott moved to dismiss the case as frivolous. He stressed his immunity from suit. In his response, Thompson contended that Scott was not immune from a petition for injunctive relief against a violation of Thompson's constitutional right to freedom of religion. The court dismissed the action without stating a basis after a hearing at 9:00 a.m. on January 20, 1994. (1) We therefore do not consider the allegations made in Thompson's amended petition, filed at 1:25 p.m. on January 20, 1994. DISCUSSION By his sole point of error, Thompson contends that the trial court erred by dismissing his claim as frivolous. We review the court's dismissal for abuse of discretion. Ca