CLIFTON JONES v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION--Appeal from 343rd District Court of Bee County

NUMBER 13-05-197-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

  CLIFTON JONES, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICEB

CORRECTIONAL INSTITUTIONS DIVISION, Appellee.

On appeal from the 343rd District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Clifton Jones, 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 (TDCJ-CID). By three issues, appellant contends that the trial court erred by dismissing his claim 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 first and third issues, appellant complains that the trial court erred when it dismissed his petition pursuant to chapter 14 of the civil practice and remedies code. See id. Before addressing the merits of his appeal, we must, therefore, 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.

Relying on section 14.002, appellant argues that chapter 14 does not apply to his claim because it "applies only to a suit brought by an inmate." See id. '14.002(a). Appellant contends 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 bringing a suit. See Tex. Gov't Code Ann. ' 501.008(d) (Vernon 2004). 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 TDCJBCID. Claiming his civil rights were violated, appellant brought suit in district court pursuant to 42 U.S.C. ' 1983 and article 5, section 8 of the Texas Constitution. Specifically, appellant alleged that TDCJBCID violated his rights to a fair and impartial disciplinary hearing and to a fair and impartial administrative review of the findings of that disciplinary hearing. He sought injunctive relief and requested that the district court vacate the final decision in his disciplinary case. The same day he filed suit, appellant also filed, in district court, an affidavit requesting permission to proceed in forma pauperis. It is undisputed that appellant is an inmate and that he filed suit proceeding pro se and in forma pauperis; therefore, he is subject to the provisions of chapter 14 of the civil practice and remedies code.

Appellant also argues that, rather than applying chapter 14, we should recognize the inherent right of appeal from an administrative body. Again, we disagree. The authority upon which appellant relies 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. 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 does not develop his contention further regarding the alleged violation, if any, of a constitutional provision.[1] 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 also fails.

Accordingly, we conclude the trial court did not err when it applied chapter 14 of the civil practice and remedies code to this appeal from the adverse decision of an administrative agency that appellant brought pursuant to section 501.008 of the government code. Appellant's first and third issues are overruled.

II. Standard of Review

Chapter 14 provides that a court may dismiss a claim if the court finds that the claim is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon 2002). Section 14.003(b) lists 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

By his second issue, appellant complains that the trial court erred by dismissing his petition in view of the fact that he has no remedy by way of habeas corpus. However, the Fifth Circuit has concluded the following:

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).

Appellant claims that he was denied a fair and impartial disciplinary hearing and seeks to have the findings of his disciplinary case vacated. He argues that his punishment, the loss of fifteen days of good time credit and a loss in line classification, does not implicate the duration of his confinement because, as a 3G offender, he is ineligible for release under mandatory supervision laws. The issue, however, is not how the loss of good time and line classification affect appellant's mandatory supervision release, but rather that they directly implicated the duration of appellant's confinement through his eligibility for parole release.

At the hearing on the State's motion to dismiss, while claiming "[t]he overturn of a disciplinary case would not cause me to be released early at all," appellant also stated that "[t]his stops me because of my parole. This bogus case that was written against me is on top of my parole file. It applies to my parole eligibility to meet parole. It doesn't have anything to do with my release because of my mandatory supervision time frame." He also responded that "it affects my parole eligibility," and "they made me ineligible to meet the parole requirements to have the interview with the parole board."

While appellant argues that he is seeking review of the administrative findings on appeal from the disciplinary hearing staff's findings of guilt, he is, in essence, seeking relief for an allegedly defective hearing which is a challenge to the fact and duration of his custody. Appellant's claim implicates the duration of his sentence.

We conclude, therefore, appellant did not file his claim in the correct court, and 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, the trial court did not abuse its discretion when it dismissed appellant's claim.

We overrule appellant's second 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 also relies on Bohannon v. TDCJ-ID, 942 S.W.2d 113 (Tex. App.BAustin 1997, writ

denied) (per curiam). However, in Bohannon, the challenge is to the substance of a rule of the Texas Board of Criminal Justice that applied to any inmate or to an action taken under the rule. Id. at 117 (citing Tex. Gov't Code Ann. ' 2001.238 (West 1997)). Such is not the case in the present appeal; therefore, appellant's reliance on Bohannon is misplaced.