Appeal from the 32nd District Court Mitchell County, Texas
Trial Court Cause No.16899
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE .
Wayne Smith appeals the trial court's dismissal of his
suit against Warden Linda Gonzales and Corrections Officer
Janie Peek, both of the Texas Department of Criminal Justice.
Appearing pro se and in forma pauperis, Appellant
challenges the dismissal of his suit by the trial court. We
is an inmate housed in the Institutional Division of the
Texas Department of Criminal Justice. Appellant sued
Appellees solely in their official capacity, asserting
alleged violations of the Fifth and Fourteenth Amendments to
the U.S. Constitution and alleged violations arising out of
Section 39.03 of the Texas Penal Code for refusing to provide
Appellant with a copy of the Uniform Commercial Code.
Specifically, Appellant stated as follows in the opening
paragraph of his petition: "Linda Gonzales Warden, Janie
R. Peek Law Library Clerk YOU HAVE BEEN SUED; Both Defendants
of the Dick Ware Unit in your official capacity . . . ."
Appellant concluded his petition with the following damage
claim: "The Plaintiff request [sic] this court to order
the Defendant to Pay 25, 000 Dollars each in there [sic]
official capacity . . . ."
filed a motion to dismiss, alleging that Appellant's
claim was frivolous and that Appellant failed to comply with
the procedural prerequisites under Chapter 14 of the Texas
Civil Practice and Remedies Code. Appellees asserted that
Appellant's claims were barred by sovereign immunity and
were, therefore, frivolous. Appellees also alleged that
Appellant could not bring a private cause of action under the
Texas Penal Code. Finally, Appellees asserted that Appellant
did not comply with the procedural requirements of Chapter 14
of the Texas Civil Practice and Remedies Code because he (1)
failed to file an affidavit or declaration describing each
previously filed lawsuit and (2) failed to exhaust his
administrative remedies. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.004-.005 (West 2017). The
trial court dismissed Appellant's suit with prejudice.
sole issue, Appellant contends that the trial court abused
its discretion by dismissing his suit. Inmate litigation is
governed by Chapter 14 of the Texas Civil Practice and
Remedies Code. Chapter 14 applies when, as here, an inmate
files suit in a district court and files an affidavit of
inability to pay costs. Civ. Prac. & Rem. § 14.002;
see Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex.
App.-Fort Worth 2008, no pet.). Under Chapter 14, a trial
court may dismiss an inmate's lawsuit for failing to
comply with the chapter's procedural requirements; it may
also dismiss a lawsuit that is malicious or frivolous. Civ.
Prac. & Rem. § 14.003; Scott v. Gallagher,
209 S.W.3d 262, 265 (Tex. App.-Houston [1st Dist.] 2006, no
legislature enacted Chapter 14 to control the flood of
frivolous lawsuits being filed in Texas courts by prison
inmates because these suits consume many valuable judicial
resources with little offsetting benefits. Hamilton v.
Pechacek, 319 S.W.3d 801, 809 (Tex. App.-Fort Worth
2010, no pet.) (citing Bishop v. Lawson, 131 S.W.3d
571, 574 (Tex. App.-Fort Worth 2004, pet. denied)). Under
Chapter 14, a trial court may dismiss a claim by an inmate if
it finds the claim to be frivolous or malicious. Civ. Prac.
& Rem. § 14.003(a)(2); see Comeaux v. Tex.
Dep't of Criminal Justice, 193 S.W.3d 83, 86 (Tex.
App.-Houston [1st Dist.] 2006, pet. denied). A claim is
frivolous if it has no basis in law or fact.
Comeaux, 193 S.W.3d at 86.
review a Chapter 14 dismissal for an abuse of discretion.
Gross v. Carroll, 339 S.W.3d 718, 723 (Tex.
App.-Houston [1st Dist.] 2011, no pet.). When an inmate's
lawsuit is dismissed as frivolous for having no basis in law
or in fact but no fact hearing is held, our review focuses on
whether the inmate's lawsuit has an arguable basis in
law. Calton v. Schiller, 498 S.W.3d 247, 253 (Tex.
App.- Texarkana 2016, pet. denied). "While a chapter 14
dismissal is reviewed under an abuse of discretion, the issue
as to whether a claim has an arguable basis in law is a legal
question that we review de novo." Hamilton, 319
S.W.3d at 809. "We will affirm the dismissal if it was
proper under any legal theory." Id. (citing
Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.
1990) (per curiam)). "In conducting our review, we take
as true the factual allegations in an inmate's petition
and review the types of relief and causes of action set out
therein to determine whether, as a matter of law, the
petition stated a cause of action that would authorize
relief." Id. "A claim has no arguable
basis in law if it relies upon an indisputably meritless
legal theory." Id.
first note that the Texas Penal Code does not create a
private cause of action. Id. at 813 (citing
Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex.
2004); Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.
App.-San Antonio 2002, no pet.)). Accordingly,
Appellant's claims based on Appellees' alleged
violation of the Texas Penal Code are frivolous because they
lack an arguable basis in law.
noted previously, Appellant sued Appellees solely in their
official capacity. A suit against a state official in his
official capacity "is not a suit against the official
personally, for the real party in interest is the
entity." Texas A & M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting
Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
"Such a suit actually seeks to impose liability against
the governmental unit rather than on the individual
specifically named and 'is, in all respects other than
name, . . . a suit against the entity.'"
Id. (quoting Graham, 473 U.S. at 166);
see also Tex. Nat. Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 855-56 (Tex. 2002). "Absent
legislative waiver, sovereign immunity deprives Texas state
courts of subject-matter jurisdiction over any suit against
the State or its agencies or subdivisions."
Livingston v. Beeman, 408 S.W.3d 566, 572 (Tex.
App.-Austin 2013), aff'd, 468 S.W.3d 534 (Tex.
2015). That same immunity extends to Texas state officials
who are sued in their official capacities. Id.
suit against Appellees is in the nature of a Section 1983
action. 42 U.S.C.A § 1983; Hamilton, 319 S.W.3d
at 811 ("Section 1983 creates a private right of action
for violations of an individual's federally guaranteed
rights by those acting under color of state law.").
Section 1983 does not abrogate a state's sovereign
immunity from suit without the state's consent.
Hamilton, 311 S.W.3d 811. "When sued under
section 1983 in an official capacity, a ...