Full Opinion

Affirmed and Memorandum Opinion filed August 27, 2026. In The Fifteenth Court of Appeals NO. 15-25-00118-CV JAMES BRICKLEY, Appellant V. NICHOLAS WALTON, Appellee On Appeal from the 440th District Court Coryell County, Texas Trial Court Cause No. DC-24-55842 MEMORANDUM OPINION Appellant James Brickley, an inmate appearing pro se, sued correctional officer Nicholas Walton for theft and civil rights violations allegedly resulting from a routine inmate search. After the district court granted Walton’s plea to the jurisdiction and dismissed the case, Brickley filed this appeal. For the reasons set forth below, we affirm the trial court’s judgment. BACKGROUND Brickley is incarcerated in the Alfred Hughes Unit in Coryell County, Texas. According to the allegations in Brickley’s original petition, in June 2023, Officer Walton led a team of correctional officers in a search of Brickley’s correctional housing unit. Brickley alleges that he was absent during the search, and when he returned, he discovered that documents related to his pending parental-rights case were missing from his cell. Brickley filed a grievance with the prison and asked Walton to provide him with the identities of the officers involved in the search. In response, Walton denied Brickley’s request and informed him that none of the officers reported any confiscated property, that the legal materials had no reimbursable monetary value, and that there was insufficient evidence that the Texas Department of Criminal Justice was responsible. Brickley later lost his parental rights. Brickley sued Walton for theft and civil rights violations under the Texas Penal Code. See Tex. Penal Code §§ 31.03 (prohibiting intentional and unlawful appropriation of property), 39.04 (prohibiting intentional or knowing abuse of official capacity by government employees of correctional facilities). He alleged that Walton deprived him of legal materials necessary to litigate his parental-rights case, thereby impeding his access to the courts. Brickley also sought damages under Sections 41.003 and 134.005 of the Texas Civil Practice and Remedies Code (CPRC). See Tex. Civ. Prac. & Rem. Code §§ 41.003 (providing exemplary damages for certain CPRC violations), 134.005 (providing damages for violations of Chapter 134 of the CPRC (Texas Theft Liability Act)). Walton responded by filing a plea to the jurisdiction, asserting that the Penal Code does not create a private cause of action and, therefore, that the trial court lacked subject-matter jurisdiction. Brickley filed a motion requesting that Walton’s 2 attorney show authority to act as counsel. Without conducting a hearing or permitting Brickley to amend his petition, the trial court granted the plea and dismissed the case with prejudice for lack of subject-matter jurisdiction. STANDARD OF REVIEW “A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). The plea “may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the trial court’s ruling on a plea to the jurisdiction de novo. City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457 (Tex. 2020). In doing so, “[w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleader[’s] intent.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). The plaintiff has the burden of affirmatively demonstrating the court’s jurisdiction to hear the case. Id. If at first the pleadings do not affirmatively demonstrate the court’s jurisdiction, the court should allow the plaintiff an opportunity to amend “if the challenged jurisdictional defect may be cured with further factual allegations.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024) (per curiam) (citing Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024)). The pleadings must not “demonstrate incurable defects in jurisdiction.” Miranda, 133 S.W.3d at 226–27 (citing Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). Should the pleadings “affirmatively negate the existence of jurisdiction,” the court may grant the plea “without allowing the plaintiffs an opportunity to amend.” Id. at 227. 3 Ultimately, when a plaintiff is “capable of remedying the jurisdictional defect,” a dismissal with prejudice is improper. Sykes, 136 S.W.3d at 639. DISCUSSION In two issues on appeal, Brickley asserts that the trial court erred in dismissing his suit for want of jurisdiction or, alternatively, in failing to allow him to replead. In a third issue on appeal, Brickley asserts that the trial court erred in failing to rule on his motion to show authority. I. The trial court did not err in failing to provide Brickley an opportunity to amend his petition and dismissing his suit with prejudice. In his plea to the jurisdiction, Walton argued that the trial court lacked jurisdiction over Brickley’s claims because the Penal Code does not provide a private right of action. On appeal, Brickley does not dispute this argument. Instead, he argues that his petition, reasonably construed, also asserts claims for theft under the Theft Liability Act. See Tex. Civ. Prac. & Rem. Code §§ 134.001–.005. According to Brickley, he referenced the Penal Code in his petition because the Theft Liability Act provides civil remedies for theft and statutorily incorporates various Penal Code provisions. See id. § 134.003 (providing “damages resulting from theft”). Alternatively, Brickley argues that the trial court should have allowed him to amend his petition to assert a claim under the Theft Liability Act. First, we disagree that Brickley’s pleadings, reasonably construed, state a claim for relief under the Theft Liability Act. A petition must contain “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Tex. R. Civ. P. 47(a). A cause of action must give “fair notice of the claim” and must answer “whether the opposing party ‘can ascertain from the pleading the nature 4 and basic issues of controversy.’” Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d 835, 849 (Tex. 2021) (quoting DeRoeck v. DHM Ventures, LLC, 556 S.W.3d 831, 835 (Tex. 2018) (per curiam)). The plaintiff must give notice of the cause of action and claim sought so that the defendant may “prepare a defense.” Id. Here, Brickley sought to “hold [Walton] liable under the Texas Penal Code [Section] 31.03” and “pursuant to the Texas Penal Code [Section] 39.04.” Although Brickley listed damages he sought in his prayer and cited two statutes, the remainder of his petition makes no mention of those statutes or how Walton allegedly violated them. Instead, Brickley stated only that Walton violated the Penal Code. As a result, Brickley’s petition did not provide “fair notice” of a Theft Liability Act claim such that Walton “can ascertain from the pleading the nature and basic issues of controversy.” See Kinder Morgan SACROC, 622 S.W.3d at 849. While we liberally construe the pleadings in favor of the pleader, we “cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain.” See Martinez, 691 S.W.3d at 419 (quoting Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.)). Therefore, the trial court did not err in determining that it lacked jurisdiction over Brickley’s claims as pleaded. Second, we conclude that the trial court did not err in failing to afford Brickley an opportunity to amend his petition to add a Theft Liability Act claim. Generally, the opportunity to amend enables “parties, over whose claims the trial court may have jurisdiction, to plead facts tending to establish that jurisdiction, not for parties, over whose claims the trial court does not have jurisdiction, to plead new claims over which the trial court does have jurisdiction.” Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (citing Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam)). A plaintiff may not cure a jurisdictional defect by “changing the claims they are bringing.” Id. 5 Here, Brickley seeks to remedy the jurisdictional defects in his petition by pleading an additional claim that he did not plead in the trial court. “But the right to amend is not a mechanism for parties ‘over whose claims the trial court does not have jurisdiction, to plead new claims over which the trial court does have jurisdiction.’” Brickley v. Mitchell, No. 15-25-00063-CV, 2025 WL 3672575, at *3 (Tex. App.—15th Dist. Dec. 18, 2025, pet. denied) (mem. op.) (citing Clint Indep. Sch. Dist., 487 S.W.3d at 559). Brickley did not plead a Theft Liability Act claim in the trial court, and the trial court correctly did not allow him to replead to state one based on the same facts. But even if Brickley repleaded to state a cause of action under the Theft Liability Act, he still would not prevail. See Tex. Civ. Prac. & Rem. Code § 101.106(f); 1 see also Brickley, 2025 WL 3672575, at *3 (holding in similar suit Brickley filed against prison’s mailroom supervisor that repleading under Theft Liability Act “would be futile”). Finally, we conclude that the trial court did not err by dismissing Brickley’s suit with prejudice because his pleadings affirmatively negated the existence of jurisdiction. See Morrell v. Tex. Comm’n on Env. Quality, No. 15-25-00212-CV, 2026 WL 996958 (Tex. App.—15th Dist. Apr. 14, 2026, no pet.) (“[D]ismissal with prejudice is proper when pleadings are ‘incurably defective’ in that they ‘affirmatively negate the existence of jurisdiction.’” (quoting Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839, 846 (Tex. 2007))). Here, Brickley sought to hold 1 Section 101.106(f) states: If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. Tex. Civ. Prac. & Rem. Code § 101.106(f). This provision applies here. 6 Walton civilly liable under the Penal Code. However, the Penal Code does not create a private cause of action, and we may not imply one. Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex. 2004) (holding that “causes of action may be implied only when a legislative intent to do so appears in the statute as written”). Accordingly, the trial court did not err by failing to afford Brickley an opportunity to amend his petition and dismissing his suit with prejudice. We overrule Brickley’s first and second issues on appeal. II. The trial court did not err by failing to rule on Brickley’s motion to show authority before issuing final judgment. In his motion to show authority, Brickley argued that Walton’s attorney—who worked for the Texas Office of the Attorney General—was not authorized to represent Walton. Brickley argued that Section 402.021 of the Texas Government Code, which authorizes the Attorney General to “defend all actions in which the state is interested,” did not apply because he sued Walton in his individual capacity, not his official capacity. See Tex. Gov’t Code § 402.021 (“The attorney general shall prosecute and defend all actions in which the state is interested before the supreme court and courts of appeals.”). The trial court did not rule on Brickley’s motion to show authority. On appeal, Brickley contends that the trial court erred in failing to rule on his motion to show authority before ruling on his plea to the jurisdiction. Even assuming without deciding that Brickley is correct that the trial court erred by not ruling on his motion, any such error was harmless. Even had the trial court ruled on it, Brickley’s motion to show authority would not have provided him relief. The Attorney General had the authority to represent Walton in this case. Section 104.004 of the CPRC specifically authorizes the Attorney General to defend government employees in causes of action arising from acts performed in the course and scope of employment, if the Attorney General 7 determines that indemnification is in the State’s interest. See Tex. Civ. Prac. & Rem. Code §§ 104.001–.004. Walton was acting within the course and scope of his employment at all relevant times. We conclude that any error committed by the trial court in failing to rule on Brickley’s motion was harmless, considering the record as a whole. Tex. R. App. P. 44.1(a); Horton v. Kansas City S. Ry. Co., 692 S.W.3d 112, 138 (Tex. 2024) (citing In re Est. of Poe, 648 S.W.3d 277, 285–86 (Tex. 2022)). We overrule Brickley’s third issue on appeal. CONCLUSION Having overruled Brickley’s issues on appeal, we affirm the trial court’s judgment dismissing his suit for lack of jurisdiction. /s/ Scott K. Field Scott K. Field Justice Before Chief Justice Brister and Justices Field and Farris. 8