Opinion filed January 20, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00035-CV
                                       __________

                         ELLIOTT S. WINFIELD, Appellant

                                              V.

                    TERRY D. KILPATRICK ET AL, Appellees


                          On Appeal from the 259th District Court

                                     Jones County, Texas

                                 Trial Court Cause No. 021925


                           MEMORANDUM OPINION

       Elliott S. Winfield, an inmate in the French Robertson Unit of the Texas Department of
Criminal Justice, sued the Department and numerous employees of the Department for malicious
prosecution. He contends that employees of the Department instituted an improper disciplinary
action against him based upon a falsified offense report.     He asserts that these employees
violated his constitutional rights based upon their participation in the disciplinary action. He
sought money damages, injunctive relief, and declaratory relief for the alleged malicious
prosecution. The trial court dismissed all of Winfield’s claims pursuant to Chapter Fourteen of
the Texas Civil Practice and Remedies Code based upon its determination that his claims were
frivolous. TEX. CIV. PRAC. & REM. CODE ANN. ch. 14 (Vernon 2002). We affirm.
         Winfield challenges the trial court’s order of dismissal in nine issues. He asserts in his
first issue that the trial court’s order of dismissal was erroneous and contrary to the law. Chapter
Fourteen of the Texas Civil Practice and Remedies Code applies when, as here, an inmate files
suit in a district court and files a declaration of indigency. See Section 14.002. Under Chapter
Fourteen, 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 frivolous or malicious.            Id.
Section 14.003; Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006,
no pet.). We review a dismissal under Chapter Fourteen for an abuse of discretion. Bishop v.
Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied). 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. See
Section 14.003; Scott, 209 S.W.3d at 266. A clear failure by the trial court to analyze or apply
the law correctly is an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.
1995).
         In conducting our review, we take as true the allegations in the 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. See Scott, 209 S.W.3d at
266; Harrison v. Tex. Dep’t of Criminal Justice, Inst. Div., 164 S.W.3d 871, 875 (Tex. App.—
Corpus Christi 2005, no pet.). A claim has no arguable basis in law if it is an indisputably
meritless legal theory. Scott, 209 S.W.3d at 266-67. Further, a claim has no arguable basis in
law if the inmate has failed to exhaust his administrative remedies. Retzlaff v. Tex. Dep’t of
Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). If
an inmate fails to exhaust his administrative remedies, we may affirm a dismissal even if the
ground was not presented in a motion to dismiss. Section 14.005; Retzlaff, 94 S.W.3d at 653.
         The trial court did not conduct a hearing before it dismissed Winfield’s lawsuit.
Therefore, the issue before us is whether the trial court properly determined that there was no
arguable basis in law for Winfield’s claims. See Scott, 209 S.W.3d at 266; Retzlaff, 94 S.W.3d at
653. We conclude that the trial court did not abuse its discretion in determining that there was
no arguable basis in law for Winfield’s claims arising from the purported malicious prosecution.

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         Winfield had to allege the following facts to support a prima facie claim of malicious
prosecution: (1) the institution or continuation of civil proceedings against him; (2) by or at the
insistence of the defendants; (3) malice in the commencement of the proceeding; (4) lack of
probable cause for the proceeding; (5) termination of the proceeding in his favor; and (6) special
damages.       Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 208 (Tex. 1996).1                                     Assuming
arguendo that a claim for malicious prosecution exists for an administrative disciplinary
proceeding, Winfield failed to allege facts showing the disciplinary proceeding was sufficiently
terminated in his favor.
         As required by Section 14.005(a)(2), Winfield attached copies of the Step 1 and Step 2
grievances that he filed to protest the outcome of the disciplinary proceeding. 2 Winfield alleged
in his Step 1 grievance that he was not allowed to present evidence as a part of his defense in the
disciplinary proceeding. The Step 1 grievance was denied with the following notation:
                Major disciplinary case #20090103784 has been reviewed and no
         procedural errors were noted. You were present at the hearing and afforded an
         opportunity to present your defense. The guilty verdict was supported by a
         preponderance of the evidence. The punishment imposed was within guidelines.
         As there are no apparent due process errors, there is no reason to warrant
         overturning this case.

         In his Step 2 grievance, Winfield re-urged his contention that he was not allowed to
present evidence as a part of his defense in the disciplinary proceeding. Winfield prevailed on
this procedural claim in the Step 2 grievance with the following ruling: “Disciplinary case
#20090103784 will be overturned. Your records regarding this case will be corrected. The
option to rehear this case will be left to the Warden’s discretion” (emphasis added). The
essential question to be determined from the outcome of the Step 2 grievance is whether “the
proceedings have terminated in favor of the accused.” Davis v. City of San Antonio, 752 S.W.2d
518, 523 (Tex. 1988) (emphasis added). The outcome of the Step 2 grievance does not constitute
a termination of the disciplinary proceeding in Winfield’s favor because the Step 2 grievance

         1
           The elements of a malicious prosecution claim arising from a criminal prosecution are virtually identical. See
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997) (To successfully assert a claim for malicious prosecution, a
plaintiff must show by a preponderance of the evidence that (1) a criminal prosecution was commenced against him; (2) the
defendant initiated or procured that prosecution; (3) the prosecution terminated in his favor; (4) he was innocent of the charges;
(5) the defendant lacked probable cause to initiate the prosecution; (6) the defendant acted with malice; and (7) he suffered
damages.).
        2
          See Leachman v. Dretke, 261 S.W.3d 297, 308-12 (Tex. App.—Fort Worth 2008, no pet.), for a discussion of the
Department’s grievance procedures.


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ruling specifically states that the warden had the option of rehearing the case. A proceeding is
not terminated favorably for the accused if the prosecution can be revived. Id. Accordingly, the
supporting documentation for Winfield’s lawsuit affirmatively negates an element of a malicious
prosecution claim. The trial court did not abuse its discretion in determining that Winfield’s
claims were frivolous. Winfield’s first issue is overruled.
       Winfield asserts in his fourth issue that the trial court erred in dismissing his lawsuit prior
to the date of a pretrial hearing that the trial court had previously scheduled in the case.
Section 14.003 provides the trial court with the authority to dismiss a frivolous inmate action at
any time with or without a motion to dismiss being filed. The fact that the trial court may have
previously scheduled a pretrial hearing did not alter the trial court’s statutory authority for
dismissing a frivolous lawsuit at any time. Winfield’s fourth issue is overruled.
       In his fifth issue, Winfield contends that the trial court abused its discretion by dismissing
his lawsuit without holding a hearing. As noted previously, the trial court is not required to
conduct a hearing before dismissing a frivolous inmate lawsuit if there is no arguable basis in
law for the inmate’s claims.      See Scott, 209 S.W.3d at 266; Retzlaff, 94 S.W.3d at 653.
Accordingly, the trial court did not err in dismissing Winfield’s claims without conducting a
hearing because there was no arguable basis in law for his claims. Winfield’s fifth issue is
overruled.
       Winfield argues in his second issue that the trial court erred in refusing to issue written
findings of fact and conclusions of law after the dismissal. When a trial court renders a judgment
or dismisses a cause without hearing any evidence, findings of fact are not appropriate. See IKB
Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); Timmons v. Luce, 840 S.W.2d 582,
586 (Tex. App.—Tyler 1992, no writ). Accordingly, findings of fact and conclusions of law are
not appropriate in the present case. Winfield’s second issue is overruled.
       Winfield’s third and sixth issues concern the preparation of the clerk’s record on appeal.
We have previously addressed Winfield’s complaints regarding the clerk’s record in several
orders issued during the pendency of this appeal. Accordingly, his third and sixth issues are
overruled as moot.
       In his seventh issue, Winfield protests the acts and omissions of the Department and its
employees as constituting willful blindness and deliberate ignorance of the violation of his
constitutional rights.   The jurisdiction of this court of appeals is, except where otherwise

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specially provided, appellate only. TEX. GOV’T CODE ANN. § 22.220(a) (Vernon Supp. 2010);
see also Thorp Springs Christian Coll. v. Dabney, 37 S.W.2d 193, 196 (Tex. Civ. App.—
Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to the review of
decisions made by a lower court. See United Am. Ins. Co. v. McPhail, 435 S.W.2d 624, 625-26
(Tex. Civ. App.—Tyler 1968, no writ); see also Walker v. Koger, 131 S.W.2d 1074, 1075 (Tex.
Civ. App.—Eastland 1939, writ dism’d judgm’t cor.) (The subject matter of an assignment of
error is some ruling or action of the trial court.). Here, since Winfield complains of acts and
omissions by the Department and its employees, rather than a decision of the trial court, we lack
jurisdiction over the matter. Therefore, we decline to address Winfield’s seventh issue.
       Winfield complains of the premature billing of costs in his eighth and ninth issues.
However, he has not adequately briefed these issues for appellate review because he has not
provided any argument in support of these issues. In this regard, Winfield has combined the
argument and authorities in support of his nine issues in a single section in his brief. Winfield’s
eighth and ninth issues are overruled.      All of Winfield’s arguments on appeal have been
considered, and each is overruled.
        The trial court’s order of dismissal is affirmed.




                                                            PER CURIAM



January 20, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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