                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-17-00390-CV


                              THOMAS FLORENCE, APPELLANT

                                                  V.

                    STEPHANIE COX AND CODY MILLER, APPELLEES

                            On Appeal from the 30th District Court
                                    Wichita County, Texas1
               Trial Court No. 185,691-A, Honorable Robert Brotherton, Presiding

                                       November 20, 2018

                                MEMORANDUM OPINION
                       Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Thomas Florence appeals the trial court’s orders declaring him a vexatious litigant

and dismissing his claims with prejudice pursuant to Chapter 14 of the Texas Civil

Practice and Remedies Code. We reform the judgment and affirm.




        1 By order of the Texas Supreme Court, this appeal was transferred to this Court from the Second
Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
                                        Background


       Florence is a Texas prison inmate. In 2016, he was accused of sexual misconduct

and found guilty after a Texas Department of Criminal Justice (TDCJ) disciplinary hearing.

Florence filed Step 1 and Step 2 grievances appealing the decision, but the finding of guilt

and sentence were affirmed.


       Proceeding as indigent, Florence sued TDCJ employees Stephanie Cox, Cody

Miller, Mohamad Sarhani, and “M. Blalcock” for alleged due process violations. Florence

claims that Cox retaliated against him by falsely accusing him of sexual misconduct,

initiating disciplinary proceedings, and falsely testifying at his hearing. He asserts that

Miller, the disciplinary hearing officer, violated his due process rights by refusing to review

a video recording of the incident. He alleges that Sarhani and Blalcock also violated his

due process rights by failing to consider the video recording when reviewing his

grievances. In his petition, Florence asks the trial court to grant him a new disciplinary

hearing, to prevent future retaliation by Cox, and to require that video recordings are

considered in future disciplinary cases.


       Florence only served process on appellees Cox and Miller.              Cox and Miller

answered the suit and moved to dismiss Florence’s claims as frivolous or malicious,

having no arguable basis in law or in fact. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.003(a)(2), (b)(2) (West 2017). They also moved to declare Florence a vexatious

litigant and to prohibit him from filing any new litigation without prior permission from a

local administrative judge. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.051, 11.101

(West 2017). Florence responded to the motions. The trial court granted appellees’



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motions without a hearing, declared Florence a vexatious litigant, and dismissed his

claims with prejudice for failure to comply with chapter 14. Florence appealed both

orders.2


                                                  Analysis


        Florence challenges the dismissal of his claims as frivolous or malicious under

chapter 14. He contends that his claims have an arguable basis in law and in fact

because (a) his due process rights were violated when the TDCJ employees refused to

review the video recording of the incident, and (b) his “state property rights” were violated

when the TDCJ employees failed to follow their own disciplinary rules and procedures.


        As to the order declaring him a vexatious litigant, Florence only addresses it once

in his brief, stating: “Defendants[’] vexatious argument / motion to dismiss documents

was without any merit and was filed in bad faith to bar plaintiff from state review of his

state created right / federal right not to be punished without a valid conviction.” He

presents no additional argument and does not cite to the record or to any supporting

authority. See TEX. R. APP. P. 38.1(i). Because Florence failed to adequately brief his

challenge to the vexatious litigant order, he failed to preserve any issues for review. See

ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880-81 (Tex. 2010); Sunnyside



        2  Sarhani and Blalcock were not served with process and made no appearance in this cause.
Nevertheless, we have jurisdiction to review the trial court’s order dismissing Florence’s claims because
section 14.003(a) allows the trial court to dismiss a claim “before or after service of process.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 14.003(a). The trial court’s order expressly states that it disposes of all parties
and claims and is a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
Accordingly, we have jurisdiction to address Florence’s appeal. See Houser v. Bluitt, No. 09-05-00336-CV,
2006 Tex. App. LEXIS 10388, at *1 n.1 (Tex. App.—Beaumont Nov. 30, 2006, pet. denied) (mem. op.);
Williams v. Denault, No. 14-00-00889-CV, 2001 Tex. App. LEXIS 7004, at *4-5 (Tex. App.—Houston [14th
Dist.] Oct. 18, 2001, no pet.).


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Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.—Amarillo 2003,

no pet.).


       We, therefore, limited our review to whether the trial court properly dismissed

Florence’s claims. In determining the nature of an inmate’s claims dismissed under

chapter 14, courts must construe the pleadings liberally and to include all claims that may

be reasonably inferred. Burnett v. Sharp, 328 S.W.3d 594, 598 (Tex. App.—Houston

[14th Dist.] 2010, no pet.). Thus, we have liberally construed Florence’s petition as

asserting section 1983 claims against the TDCJ employees in their individual capacities.

See 42 U.S.C. § 1983; Vargas v. Tex. Dep’t of Criminal Justice, No. 03-12-00119-CV,

2012 Tex. App. LEXIS 9916, at *9 (Tex. App.—Austin Nov. 30, 2012, pet. denied) (mem.

op.) (liberally construing inmate’s petition as asserting section 1983 claims where inmate

sought relief from TDCJ employees for alleged constitutional violations); Thomas v.

Bynum, No. 04-02-00036-CV, 2003 Tex. App. LEXIS 1763, at *7-8 (Tex. App.—San

Antonio Feb. 28, 2003, no pet.) (mem. op.) (noting that “Texas has no implied private right

of action for damages for constitutional violations and no statute comparable to section

1983.”).


Standard of Review


       Chapter 14 allows a trial court to dismiss an inmate’s claim as frivolous or malicious

if it has no arguable basis in law or in fact.       TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.003(a)(2), (b)(2). The trial court may hold a hearing before dismissal. TEX. CIV.

PRAC. & REM. CODE ANN. § 14.003(c). When the trial court dismisses a claim without a

fact hearing, our review focuses on whether the inmate’s claim has an arguable basis in



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law. Birdo v. Williams, 859 S.W.2d 571, 572 (Tex. App.—Houston [1st Dist.] 1993, no

writ) (“When the trial court . . . dismisses a cause without a fact hearing, the trial court

could not have determined the suit had no arguable basis in fact.”). We review the issue

de novo, and take as true the petition’s allegations to determine whether, as a matter of

law, it states a cause of action that would authorize relief. Scott v. Gallagher, 209 S.W.3d

262, 266-67 (Tex. App.—Houston [1st Dist.] 2006, no pet.).


Due Process Claims


       We find that the trial court properly dismissed Florence’s due process claims as

frivolous because he failed to plead a cognizable claim under section 1983. Section 1983

provides a private cause of action against persons acting under color of state law who

violate rights secured by the United States Constitution or federal law. See 42 U.S.C.

§ 1983; Haver v. Coats, 491 S.W.3d 877, 881 (Tex. App.—Houston [14th Dist.] 2016, no

pet.). A section 1983 claim involves two essential elements: (1) the conduct complained

of was committed by a person acting under color of state law and (2) the conduct deprived

a person of rights, privileges, or immunities secured by the Constitution or the laws of the

United States. Berry v. Tex. Dep’t of Criminal Justice, 864 S.W.2d 578, 580 (Tex. App.—

Tyler 1993, no writ).


       Florence failed to allege that he was deprived of a protected right in his petition.

Florence states he was punished as a result of the disciplinary proceedings, but does not

identify the penalty he received. Not all penalties imposed on inmates implicate due

process rights. See Hill v. Stephens, No. 14-09-01030-CV, 2010 Tex. App. LEXIS 9987,

at *6-7 (Tex. App.—Houston [14th Dist.] Dec. 16, 2010, no pet.) (mem. op.) (per curiam)



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(concluding that an inmate failed to allege a cognizable section 1983 claim where his

disciplinary proceedings only resulted in solitary confinement); Hamilton v. Williams, 298

S.W.3d 334, 341 (Tex. App.—Fort Worth 2009, pet. denied) (holding that inmate’s due

process claims had no arguable basis in law because his punishment, cell restrictions

and loss of commissary privileges, did not implicate due process concerns). In his brief,

Florence also argues that he has a state created property right to have the TDCJ

employees follow TDCJ disciplinary rules and procedures. However, he has cited to no

authority creating such a property right. See Duckett v. Tex. Dep’t of Criminal Justice

Corr. Insts. Div., No. 12-17-00207-CV, 2018 Tex. App. LEXIS 2905, at *8-9 (Tex. App.—

Tyler Apr. 25, 2018, no pet.) (mem. op.) (holding that information contained in TDCJ policy

manuals is not tangible personal property).


       Because Florence did not allege that he was deprived of a right secured by the

Constitution or laws of the United States, he has not stated any due process claims under

section 1983 as a matter of law. See Hamilton, 298 S.W.3d at 341; Abul ‘Umar v. Tex.

Dep’t of Criminal Justice, Inst. Div., No. 09-94-00379-CV, 1996 Tex. App. LEXIS 2899, at

*4 (Tex. App.—Beaumont Jan. 4, 1996, no writ).


Retaliation Claim


       Florence also failed to plead a retaliation claim against Cox. Prisoners have a First

Amendment right to be free from retaliation for complaining about a prison official’s

misconduct. Inst. Div. of the Tex. Dep’t of Criminal Justice v. Powell, 318 S.W.3d 889,

892 (Tex. 2010) (per curiam). A violation of this right is actionable under section 1983.

Id.   To establish retaliation, an inmate must demonstrate (a) he has a specific



                                              6
constitutional right, (b) the defendant intended to retaliate against him for exercising that

right, (c) a retaliatory adverse act, and (d) causation. Id.


       Florence does not allege that Cox retaliated against him for exercising a specific

constitutional right. In his petition, he only states that Cox falsely accused him of an

offense and asks the trial court to prevent future retaliation by Cox. As Florence failed to

state a retaliation claim as a matter of law, the trial court properly dismissed this claim

against Cox as frivolous. See Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex. App.—

Tyler 1996, writ denied) (finding that the trial court properly dismissed inmate’s retaliation

claim as frivolous where inmate made only conclusory allegations).


Dismissal with Prejudice


       We next consider whether Florence’s claims were properly dismissed with

prejudice. A dismissal with prejudice under chapter 14 is improper if the inmate could

remedy the error through more specific pleading. See Decker v. Dunbar, 200 S.W.3d

807, 812-13 (Tex. App.—Texarkana 2006, pet. denied).


       In appellees’ motion to dismiss, they argue that Florence’s claims are precluded

by the Supreme Court’s decision in Heck v. Humphrey, and barred by sovereign and

official immunity. See 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Thus, if

applicable, Florence would be unable to remedy his defective claims by amending his

petition.


       In Heck, the Supreme Court held that an inmate cannot assert a section 1983 claim

if the claim impliedly challenges the constitutionality of his conviction or sentence. Id. at

489. The Heck rule also applies to section 1983 claims that challenge the constitutionality

                                              7
of prison disciplinary proceedings if the penalty imposed affects the duration of the

inmate’s sentence. See Edwards v. Balisok, 520 U.S. 641, 648-49, 117 S. Ct. 1584, 137

L. Ed. 2d 906 (1997) (applying the Heck rule to the loss of good-time credits). Because

Florence has not alleged that this disciplinary action affected the duration of his sentence,

the Heck rule does not bar his claims as a matter of law. Muhammad v. Close, 540 U.S.

749, 751-52, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004); Fernandez v. T.D.C.J., 341 S.W.3d

6, 11-12 (Tex. App.—Waco 2010, no pet.).


       We also find that sovereign immunity and official immunity do not preclude

Florence’s claims as a matter of law. Persons sued in their official capacity under section

1983 may raise sovereign immunity as a defense. Hidalgo Cty. v. Gonzalez, 128 S.W.3d

788, 792-93 (Tex. App.—Corpus Christi 2004, no pet.). However, sovereign immunity

does not apply to claims against officials in their individual capacity. Hamilton v.

Pechacek, 319 S.W.3d 801, 811 (Tex. App.—Fort Worth 2010, no pet.). Florence’s

petition does not state whether he sues the TDCJ employees in their official or individual

capacities. We must liberally construe his pleadings as asserting claims against the

employees in their individual capacities. See Lagaite v. Boland, 300 S.W.3d 911, 913

(Tex. App.—Amarillo 2009, no pet.) (liberally construing inmate’s petition “as alleging a

complaint arguably founded in the law”).


       Although qualified or official immunity shields government employees sued in their

individual capacities under section 1983, it only protects them from personal liability when

performing discretionary duties in good faith within the scope of their authority. City of

Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Florence alleges that the

TDCJ employees were acting in bad faith throughout his disciplinary and grievance

                                             8
proceedings. Taking his allegations as true, we cannot conclude that official immunity

precludes his claims as a matter of law. See Harrison v. Tex. Dep’t of Criminal Justice-

Inst. Div., 915 S.W.2d 882, 888 (Tex. App.—Houston [1st Dist.] 1995, no writ).


      Florence’s claims, as alleged, could have been remedied by repleading.

Therefore, the trial court erred in dismissing the claims with prejudice. See Curtis v.

Kountz, No. 09-06-00036-CV, 2006 Tex. App. LEXIS 8301, at *6-7 (Tex. App.—

Beaumont Sept. 21, 2006, no pet.) (mem. op.).


                                      Conclusion


      We reform the trial court’s judgment to provide that Florence’s claims are

dismissed without prejudice. As reformed, the judgment is affirmed.




                                                      Judy C. Parker
                                                         Justice




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