PRESTON JEROME WHITE v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTIONS DIVISION--Appeal from 36th District Court of Bee County

NUMBER 13-04-530-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

  PRESTON JEROME WHITE, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICEB

CORRECTIONAL INSTITUTIONS DIVISION, Appellee.

On appeal from the 36th District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Preston Jerome White, a prison inmate, appeals pro se and in forma pauperis from the dismissal of his claims against the Texas Department of Criminal JusticeBCorrectional Institutions Division (TDCJBCID). By one issue, appellant contends that the district court erred by dismissing his claim 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. Applicability of Chapter 14

By his sole issue, appellant first argues that the trial court erred when it dismissed his petition pursuant to chapter 14 of the civil practice and remedies code because that chapter does not apply. See id. Therefore, before addressing the merits of his appeal, we must determine whether appellant's petition for judicial review was a suit subject to the provisions of chapter 14 of the civil practices and remedies code.

Appellant argues that, rather than applying chapter 14, we should recognize the inherent right of appeal from an administrative body. We disagree. The authority upon which appellant relies for his inherent-right argument is Arlington Hotel and Motel Ass'n v. Howard Johnson, Inc., 397 S.W.2d 555, 557 (Tex. Civ. App.BFort Worth 1965, writ ref'd n.r.e.). In Arlington Hotel, the Fort Worth Court of Appeals wrote the following:

The action of the Authority in leasing land for motor hotel purposes on land acquired by the Authority by purchase was within the rights given the Authority by the statute creating the Turnpike Authority.

The action of the Authority was a governmental function carried out by an administrative agency.

In City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, [790] (1951), the Supreme Court held: "When the legislature creates an administrative agency, the legislature may prescribe rules and regulations governing the administrative body and the method by which the rights determined by such body shall be enforced. Judicial review of administrative action may be specifically provided, or specifically denied by the legislature, but even where judicial review is specifically provided it will be denied if the legislature requires the court to substitute itself for the administrative body and perform purely administrative acts. Or the legislature may simply be silent upon the subject. Although the legislature specifically denies judicial review, decisions of an administrative body may be attacked in court if they violate some provision of the State or Federal Constitution. But all other decisions of such an administrative body which do not affect vested property rights or otherwise violate some constitutional provision are valid, and the mere fact that the legislature has denied judicial review does not invalidate them. The corollary of this proposition is that the courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only where the administrative action complained of violates a constitutional provision."

Id. (citations omitted) (emphasis added). We cannot conclude that Arlington Hotel supports appellant's contention, and he provides nothing further. See Tex. R. App. P. 38.1(h) ("[T]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Thus, this arguments fails.

Relying on section 14.002, appellant also argues that chapter 14 is inapposite because he is appealing an adverse decision of an administrative agency or body pursuant to section 501.008 of the government code, not from a "suit brought by an inmate." See Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002); Tex. Gov't Code Ann. '501.008(d) (Vernon 2004). Again, we disagree.

Chapter 14 applies to a suit brought by an inmate in district court in which an affidavit or unsworn declaration of inability to pay costs is filed. Tex. Civ. Prac. & Rem. Code Ann. '14.002(a) (Vernon 2002). Appellant is an inmate in the custody of TDCJ-CID. He brought a suit in district court. The same day he filed suit, appellant also filed, in district court, an affidavit requesting permission to proceed in forma pauperis. Thus, we conclude chapter 14 applies in this instance, and the trial court did not err when it applied chapter 14 to this appeal from the adverse decision of an administrative agency brought pursuant to section 501.008 of the government code.

II. Standard of Review

Pursuant to chapter 14, a court may dismiss a claim if the court finds that the claim is frivolous. See id. '14.003(a)(2). In this case the district court ordered "that all claims against [TDCJ-CID] are hereby DISMISSED AS FRIVOLOUS." Section 14.003(b) lists four factors that the court may consider when determining whether an action is frivolous, including whether the claim has no arguable basis in law or in fact. Id. ' 14.003(b)(2). The proper standard of review for the dismissal of a frivolous claim pursuant to chapter 14 is an abuse of discretion. Jackson v. Tex. Dep't of Crim. Justice Inst. Div., 28 S.W.3d 811, 813 (Tex. App.BCorpus Christi 2000, pet. denied). Abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985).

III. Relief Sought

Regarding the merits of this appeal, although appellant alleges in his sole issue that TDCJ-CID did not have enough evidence to convict him of the disciplinary violation, he is, in essence, seeking relief for an allegedly defective hearing which is a challenge to the fact and duration of his custody.[1]

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 as frivolous under section 14.003(b). See id. ' 14.003(b).

We overrule appellant's sole issue on appeal.

IV. Conclusion

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 15th day of June, 2006.

[1]Appellant asserts that the record does not reflect whether the disciplinary findings affect the

fact and duration of his confinement. We disagree. The TDCJ-CID disciplinary report and hearing record, included in the appellate record, sets out that after appearing before the disciplinary hearing staff member (DHSM) and entering a plea of not guilty, appellant was found guilty and received the following punishment: (1) loss of forty-five recreation days and forty-five commissary days; (2) fifteen solitary days; and (3) a reduction in class from S4 to L2; and (4) 180 good time lost (days).