WILLIE LEE GARNER v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION--Appeal from 156th District Court of Bee County

NUMBER 13-05-588-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 WILLIE LEE GARNER, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICEB

CORRECTIONAL INSTITUTIONS DIVISION, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Willie Lee Garner, a prison inmate, appeals pro se and in forma pauperis from the dismissal of his claims against the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). By two issues, appellant contends that the district court erred by failing to liberally construe his claims and by dismissing his claims as frivolous under chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.001-.014 (Vernon 2002). Finding no abuse of discretion, we affirm.

I. Background

Appellant was charged with a prison disciplinary infraction. After exhausting his administrative remedies challenging the finding of guilt, appellant sought judicial review of the decision of the administrative agency or body to uphold its guilt finding. At a hearing on the TDCJ-CID's motion to dismiss, the TDCJ-CID argued that appellant was trying to attack a conviction that he received as a result of a disciplinary case, which could only be accomplished through a habeas corpus proceeding as opposed to a civil lawsuit brought under Title 42 U.S.C., section 1983. In response, appellant attempted to explain that the proceeding he initiated was not a lawsuit and that he utilized the grievance procedure in regards to an appeal and got no results. At the conclusion of the hearing, the district court concluded that because appellant had stated that he wanted his good time credit back and the disciplinary action taken off his record, his recourse would be by habeas corpus.

"A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.BDallas 2005, no pet.) (citing Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.BDallas 2004, no pet.)); see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 85 (Tex. 1978) (providing that litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel); cf. Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.BHouston [14th Dist.] 2005, no pet.) (applying the Haines rule, the court concluded that "[a] pro se inmate's petition should be viewed with liberality and patience and is not held to the stringent standards applied to formal pleadings drafted by attorneys."). Therefore, "[o]n appeal, as at trial, the pro se appellant must properly present its case." Green, 152 S.W.3d at 841.

In a civil case, this Court will accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f). TDCJ-CID has filed no brief in this appeal. Therefore, it has not contradicted the facts presented by appellant. However, the rules of appellate procedure require that an appellant's brief contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Id. at rule 38.1(h). In this case, appellant presents only general arguments for his contentions made, arguments that are neither clear nor concise. Furthermore, appellant has provided no record cites to support the facts, if any, stated therein.

We have little latitude on appeal and can neither remedy deficiencies in a litigant's brief nor supply an adequate record. Green, 152 S.W.3d at 841 (citing Strange, 126 S.W.3d at 678). And we have no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. See id. Because appellant failed to adequately brief his issues on appeal, he has presented nothing for our review. See id.; Tex. R. App. P. 38.1(h).

Moreover, although appellant alleges that he has an inherent right of appeal from the action of an administrative agency and that he is not seeking review of the disciplinary findings but rather of the decision that deprived him of due process by not providing an adequate administrative process, he is, in essence, seeking relief from a disciplinary finding which is a challenge to the fact and duration of his custody.

If a prisoner challenges a "single allegedly defective hearing," he attacks, in essence, the fact and duration of his custody. Whatever the nature of the relief he seeks for an isolated violation, the prisoner must resort to habeas corpus and exhaust state remedies. On the other hand, we have suggested that "a broad due process challenge" to a prison disciplinary system would represent a challenge to conditions of confinement, for which a civil rights remedy would be available.

Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983) (citations omitted). It is well settled that if an inmate wishes to challenge a disciplinary conviction or punishment that he receives while he is incarcerated, as in this case, he must file a habeas corpus action in federal court. See id.; see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that the sole remedy in federal court for a prisoner seeking restoration of good-time credits is a writ of habeas corpus); Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim. App. 1986) (en banc) (concluding state courts will not entertain state habeas actions challenging violations of prison disciplinary procedures). We, therefore, conclude appellant did not file his claim in the correct court, and thus the claim has no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b)(2) (Vernon 2002). Since there is no viable claim, we conclude the trial court did not abuse its discretion when it dismissed appellant's claim. See id. ' 14.003(b).

We overrule appellant's issues on appeal.

IV. Conclusion

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 27th day of July, 2006.