Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 343rd District Court of Bee County, Texas.
Chief Justice Valdez and Justices Contreras and Hinojosa.
Romarcus Marshall, an inmate proceeding pro se and in
forma pauperis, appeals by two issues the trial
court's dismissal with prejudice of his claim for
conversion against appellee, the Texas Department of Criminal
Justice (TDCJ). We affirm.
alleges that on July 24, 2015, prison officials confiscated
personal items which were later destroyed. Marshall filed a
grievance regarding these events. On January 7, 2016,
Marshall received the final disposition from the grievance
system provided for by TDCJ stating that no further action
was warranted. On April 28, 2016, Marshall filed suit against
William Stephens, a former TDCJ-Correctional Institutions
Division Director, and Rafael Menchaca, a property officer
for the unit where Marshall is housed, for conversion, theft,
a violation of his due process rights, and a violation of his
right of access to courts. Stephens and Menchaca filed a
motion to dismiss for failure to comply with Chapter 14 of
the Texas Civil Practice & Remedies Code. Before the
trial court ruled on the motion to dismiss and reached its
final disposition of the case, Marshall amended his pleadings
multiple times and ultimately listed TDCJ as
defendant and only proceeded with his claim for
conversion. The trial court concluded Marshall's suit had
no basis in law and dismissed it with prejudice for failure
to comply with chapter 14. This appeal followed.
14 of the Texas Civil Practice and Remedies Code governs
inmate litigation. See Tex. Civ. Prac. & Rem.
Code Ann. § 14.002 (West, Westlaw through 2017 1st
C.S.); see also id. §§ 14.001-.014 (Inmate
Litigation statute). A trial court may dismiss a suit under
chapter 14 if it is frivolous, considering whether:
(1) the claim's realistic chance of ultimate success is
slight; (2) the claim has no arguable basis in law or in
fact; (3) it is clear that the party cannot prove facts in
support of the claim; or (4) the claim is substantially
similar to a previous claim filed by the inmate because the
claim arises from the same operative facts.
Id. § 14.003(b). The trial court has broad
discretion to dismiss an inmate's claim as frivolous.
Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex.
App.-Corpus Christi 2002, no pet.). Generally, we review a
trial court's dismissal of a lawsuit under chapter 14 for
an abuse of discretion. In re Douglas, 333 S.W.3d
273, 293 (Tex. App.-Houston [1st Dist.] 2010, pet. denied).
However, when, as here, a trial court dismisses a claim as
frivolous without a hearing, the issue on appeal is limited
to whether the claim had no arguable basis in law.
Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.
App.-Houston [1st Dist.] 2002, no pet.). This is a legal
issue which we review de novo. Id.
reviewing the pleadings, we take the inmate's allegations
as true and must determine "whether, as a matter of law,
the petition stated a cause of action that would authorize
relief." Brewer v. Simental, 268 S.W.3d 763,
770 (Tex. App.-Waco 2008, no pet.). We review pro se
pleadings "by standards less stringent than those
applied to formal pleadings drafted by lawyers."
Id. A claim has no arguable basis in law only if it
is based on (1) wholly incredible or irrational factual
allegations, or (2) an indisputably meritless legal theory.
Nabelek v. Dist. Attorney of Harris Cty., 290 S.W.3d
222, 228 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).
An inmate's claim may not be dismissed merely because the
court considers the allegations "unlikely."
Id. The judgment of the trial court will be affirmed
if that judgment can be upheld on any reasonable theory
supported by the evidence. Hamilton v. Pechacek, 319
S.W.3d 801, 809 (Tex. App.-Fort Worth 2010, no pet.).
first issue, Marshall argues that the trial court abused its
discretion when it dismissed his claim with prejudice for
having no basis in law.
501.008 of the Texas Government Code establishes a statutory
requirement that inmate grievance procedures be exhausted
against all parties before a subsequent suit is initiated in
court. Tex. Gov't Code Ann. § 501.008 (West, Westlaw
through 2017 1st C.S.). Section 14.005 of the civil practice
and remedies code allows the trial court to ensure that an
inmate proceeding in forma pauperis has first
exhausted the grievance procedure, if applicable. See
Smith v. Tex. Dep't of Crim. Justice-Institutional
Div.,33 S.W.3d 338, 341 (Tex. App.-Texarkana 2000, pet.
denied). In addition, section 14.005(b) of the civil practice
and remedies code provides that "[a] court shall dismiss
a claim if the inmate fails to file the claim before the 31st
day after the date the inmate receives the written decision
from the grievance system." Tex. Civ. Prac. & Rem.