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Texas: Dismissal of Prisoner’s Property Confiscation Claim Reversed Where TDCJ Contraband Rule “Not Unambiguous”

In February 2010, the Court of Appeals of Texas (Waco) reversed in part a trial court’s order dismissing as frivolous a prisoner’s suit alleging that prison officials wrongfully confiscated and thus converted his personal property in a March 2006 semi-annual unit wide ‘shakedown’ at the Huntsville Unit of the Texas Department of Criminal Justice (TDCJ).

During the shakedown, prisoner Gordon Simmond’s typewriter was confiscated because he had placed contraband items (“white-out” correction fluid and “scotch” tape) in the typewriter for storage. Officials purported to act under the authority of the prison handbook’s definition of contraband as any “item used to violate a TDCJ rule.” The Court found that because the handbook’s definition was “not unambiguous,” it could not say as a matter of law that the typewriter was contraband. Moreover, it found that Simmond’s factual explanation for why contraband was in his typewriter (i.e. because he only used white-out when he typed, the typewriter was the most sensible place to store it) was sufficiently plausible to give his conversion claim an arguable basis in fact. Accordingly, because Simmonds’s claim for conversion of his typewriter had an arguable basis both in law and in fact, the trial court abused its discretion in concluding otherwise.

The Court also found that Simmond’s §1983 due process claim had an arguable basis both in law and in fact, and thus should not have been dismissed as frivolous. Citing Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) and Finerman v. Burch, 494 U.S. 113, 115 (1990), the Court held that where items are confiscated under the authority of a prison administrative directive, the confiscation is not a “random, unauthorized” act of a state employee shielded by the so-called Paratt/Hudson doctrine. See: Simmonds v. TDCJ, WL 654498 (Tex.App.-Waco).

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Related legal case

Simmonds v. TDCJ