                                    NO. 07-07-0331-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  SEPTEMBER 30, 2008

                           ______________________________


                    MICHAEL SCOTT, TDCJ NO. 683064, APPELLANT

                                             v.

                         RICHARD PHILLIPS, ET AL., APPELLEES
                          _________________________________

                FROM THE 251st DISTRICT COURT OF POTTER COUNTY;

                     NO. 93,764-C; HON. ANA ESTEVEZ, PRESIDING

                           _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


          Appellant, Michael Scott, appeals from an order dismissing his pro se, in forma

pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code. We

affirm.


          Scott is an inmate at the Tennessee Colony Unit of the Texas Department of

Criminal Justice, Institutional Division (hereinafter, “TDCJ-ID”). On July 18, 2004, Scott

filed a civil suit in Wichita County, Texas, against Captain Richard Phillips, April Vasquez,
and Lawrence Pattison alleging that they had ordered an unnamed correctional officer to

use a chemical agent against another inmate in an adjoining cell for the purpose of causing

injury to Scott. Appellees answered the petition claiming the affirmative defense of a

correctional officer’s privilege to use force under section 9.53 of the Texas Penal Code.

See TEX . PENAL CODE ANN . § 9.53 (Vernon 2005). On January 7, 2005, Scott filed an

amended petition adding Warden William Walker and Assistant Warden Joe Nunn as

defendants and adding an allegation that the actions of appellees in ordering the

correctional officer to use a chemical agent against the adjoining inmate was done with

malice toward Scott. Because the events giving rise to the lawsuit occurred at the Bill

Clements Unit of the TDCJ-ID located in Potter County, Texas, the case was transferred

to Potter County on September 20, 2005. Appellees filed a motion to dismiss the suit as

frivolous on April 12, 2007. See TEX . CIV. PRAC . & REM . CODE ANN . § 14.003(a)(2) (Vernon

2002).1 Scott did not file any responsive pleadings to the motion to dismiss and, on May

1, 2007, the trial court granted the motion without conducting any hearing.2          Scott

subsequently filed a motion for new trial that was overruled by operation of law. See TEX .

R. CIV. P. 329b(e). This appeal followed.


       Scott appeals, by one issue, contending that the trial court abused its discretion in

finding Scott’s petition was frivolous. We affirm.




       1
      All references to “Chapter 14” will refer to Chapter 14 of the Texas Civil Practice
and Remedies Code. Specific sections of Chapter 14 will be referenced by “§ ___.”
       2
         The appellees also filed a motion to declare Scott a vexatious litigant, which the
trial court also granted. However, Scott has not appealed this finding.

                                             2
                                    Standard of Review


       Inmate litigation, except for suits brought under the Family Code, in which the

inmate files an affidavit or unsworn declaration of inability to pay costs is governed by

special procedural rules set forth in Chapter 14. The trial court has broad discretion to

dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. § 14.003(a)(2).

When determining whether a claim is frivolous or malicious, the court may consider that

the claim has no arguable basis in law or in fact. See § 14.003(b)(2). When reviewing a

trial court’s dismissal of an inmate’s claim we apply the abuse of discretion standard. See

Bohannan v. Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.App.–Austin 1997,

writ denied). A trial court abuses its discretion when it acts without reference to any guiding

rules and principles or when the act is arbitrary and unreasonable. Id. If the trial court

dismisses a claim without a hearing, as in the situation before us, the question becomes

whether the claim has no arguable basis in the law. See Moreland v. Johnson, 95 S.W.3d

392, 394 (Tex.App.–Houston [1st Dist.] 2002, no pet.). Thus, we review de novo the

question of whether the trial court properly concluded that Scott had no arguable basis in

law for maintaining his suit. Id.


                                         Discussion


       Scott’s lawsuit alleges that the appellees ordering of an unnamed correctional officer

to use a chemical agent on an adjoining inmate was done with a malicious intent to harm

Scott. As such, Scott is attempting to allege the common law cause of action for assault

and battery. See Birdo v. Debose, 819 S.W.2d 212 (Tex.App.–Waco 1991, no writ).


                                              3
Additionally, a close reading of Scott’s petition appears to allege that the actions of the

correctional officials amounted to a violation of his civil rights under the Texas Constitution.


       The first inquiry we will make is whether there is any cognizable cause of action

under the Texas Constitution for a violation of Scott’s civil rights. Scott has not provided

this Court with any authority nor any argument supporting his claim for relief. Appellees,

however, have correctly pointed out that there is no recognized claim for violation of civil

rights under the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143,

150 (Tex. 1996). Therefore, to the extent that Scott is attempting to allege a private cause

of action for violation of his rights under the Texas Constitution, we affirm the trial court’s

determination that the claim has no arguable basis in the law.


       Our next inquiry is directed to Scott’s allegations, contained in his amended petition,

that an unnamed officer was ordered to use a chemical spray against another inmate with

a malicious intent to harm Scott. To determine whether a trial court has properly decided

that there was no arguable basis in law for an inmate’s claims, we examine the types of

relief and causes of action pleaded in the inmate’s petition to determine whether, as a

matter of law, the petition states a cause of action that would authorize relief. See

Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex.App.–Texarkana 2002, no pet.). To

have no arguable basis in law, a claim must be based on an indisputably meritless legal

theory or the facts alleged must rise to the level of irrational or wholly incredible. Gill v.

Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.–Texarkana 2001, pet. denied.). Stated

another way, the pleaded facts must not comprise a cause of action. Id. at 604. In the

present case, Scott did not plead any facts to support his alleged cause of action. Scott’s

                                               4
bare allegation that the appellees maliciously ordered a correctional officer to assault him,

without any allegation of facts that would allow the trial court to ascertain the basis for

Scott’s cause of action, is insufficient to state a cause of action that would authorize relief.

Accordingly, we cannot say that the trial court’s decision to dismiss Scott’s petition as

frivolous was an abuse of discretion, therefore, we overrule Scott’s issue.


                                         Conclusion


       Having overruled Scott’s contentions, the judgment of the trial court is affirmed.




                                     Mackey K. Hancock
                                          Justice




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