                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00389-CV

JEREMY FERNANDEZ,
                                                         Appellant
v.

T.D.C.J., ET AL.,
                                                         Appellees



                          From the 12th District Court
                             Walker County, Texas
                             Trial Court No. 24,184


                                   OPINION


      Jeremy Fernandez, a state prison inmate, appeals the trial court’s frivolousness

dismissal of his suit against the Texas Department of Criminal Justice-Correctional

Institutions Division (TDCJ) and several TDCJ officials or employees: Director

Nathaniel Quarterman, Assistant Administrator V. L. Brisher, Assistant Warden Lonny

L. Johnson, Lieutenant James Curry, Sergeant Joshua T. Reid, Corrections Officer John

W. Barkin, and Property/Corrections Officer Lawonda Hightower.

      Fernandez’s claims center around the alleged wrongful confiscation by TDCJ
employees of numerous packages of food from his personal storage locker. He alleged

in his original “complaint” that, during a “necessities shakedown” in his cell block at

the Wynne Unit, Reid seized these items because Fernandez could not produce

commissary receipts to show that he had purchased every package of food in his

possession. Fernandez claims that he tried to show Reid all of his receipts but Reid

demanded to see “only two (2) receipts showing that you bought all of this.” Because

the two receipts Fernandez produced did not account for all of the food in his locker,

Reid seized every package, including: 15 pot roasts, 47 packages of tuna, 19 packages of

coffee, 21 packages of chili with beans, 11 packages of chili without beans, 3 packages of

refried beans, 20 summer sausages, 2 packages of party mix, and 8 holiday pies. Reid

also seized 60 stamped envelopes and a pair of nail clippers.1 Reid directed Barkin to

fill out a confiscation form and to “write up” Fernandez for the disciplinary violation of

possession of contraband, namely, possession of commissary items without proof of

ownership.

        Fernandez alleges that he produced all his receipts at the disciplinary hearing but

Curry determined that he was “about 20 meat packages short of the total amount.”

Fernandez asked that all items for which he had provided proof of purchase be

returned to him, but this request was denied. He was found guilty of the disciplinary

violation and punished by a 15-day cell restriction and a 15-day suspension of

commissary privileges.


1
  The TDCJ Disposition of Confiscated Offender Property form indicates that Reid seized only 10 pot
roasts, 37 packages of tuna, 19 packages of coffee, 16 packages of chili with beans, and 6 packages of chili
without beans. Fernandez disputes these numbers.


Fernandez v. T.D.C.J.                                                                                Page 2
        Fernandez presented his receipts to Hightower a week later. She told him that

she was going to check them against the commissary’s computer records because they

were “too old.” The next day, she advised him that the items would not be returned.

Johnson denied his Step 1 Grievance, finding that the seized items had been

“improperly stored”2 and that Fernandez had “failed to provide the appropriate

documentation” to prove ownership. Brisher denied Fernandez’s Step 2 Grievance,

finding that the items were confiscated because ownership was questioned and he had

“failed to prove appropriate proof of authorized possession.”

        Fernandez alleges six causes of action in his complaint: a claim under the Texas

Tort Claims Act that the defendants caused “injury to and the loss of personal property

which was caused by the condition or use or misuse of tangible personal or real

property belonging to the State”; a claim that defendants seized his property without

due process of law in violation of article I, section 19 of the Texas Constitution; a claim

that TDCJ Administrative Directive 03.72, which requires an inmate to prove ownership

of goods from the commissary with a receipt “that is no more than 60 days old,” is

unconstitutional; an inverse-condemnation claim; a conversion claim; and a claim under

42 U.S.C. § 1983 that the individual defendants violated his civil rights.

        The defendants filed a motion to dismiss under chapter 14 of the Civil Practice

and Remedies Code, alleging that Fernandez’s suit was frivolous because he failed to

exhaust his grievances with regard to the inverse-condemnation claim and because his



2
  The Disposition of Confiscated Offender Property form reflects that the “Reason for Confiscation” of the
items was “Ownership Questioned,” not “Improperly Stored.”


Fernandez v. T.D.C.J.                                                                              Page 3
claims have no arguable basis in law or in fact. Specifically, they alleged: (1) all his

claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383

(1994); (2) his claim under the Texas Tort Claims Act has no basis in law; (3) his due-

process claim has no basis in law; (4) he failed to exhaust his administrative remedies

for his inverse-condemnation claim; (5) AD-03.72 is constitutional because it serves a

legitimate penological interest; and (6) his Fourth Amendment rights were not violated

because the seizure served a legitimate penological interest. The trial court granted the

motion without specifying the basis for its ruling. Fernandez appeals, asserting six

issues.

                                      Heck v. Humphrey

          In his first issue, Fernandez asserts that his suit is not barred by Heck v.

Humphrey. In Heck, the Supreme Court held that

          when a state prisoner seeks damages in a § 1983 suit, the district court
          must consider whether a judgment in favor of the plaintiff would
          necessarily imply the invalidity of his conviction or sentence; if it would,
          the complaint must be dismissed unless the plaintiff can demonstrate that
          the conviction or sentence has already been invalidated.

Heck, 512 U.S. at 487, 114 S.Ct. at 2372. Later, the Court applied this principle to a

section 1983 suit alleging due-process violations in an inmate disciplinary hearing that

resulted in the loss of 30 days’ good-time credit. See Edwards v. Balisok, 520 U.S. 641, 643,

117 S.Ct. 1584, 1586, 137 L.Ed.2d 906 (1997). The Court observed that the plaintiff’s

primary complaint “would, if established, necessarily imply the invalidity of the

deprivation of his good-time credits.” Id. at 646, 117 S.Ct. at 1588. The Court held that

the plaintiff’s claims for declaratory relief and money damages under section 1983 were


Fernandez v. T.D.C.J.                                                                    Page 4
barred to the extent they would, if established, necessarily imply the invalidity of the

lawfulness of his continuing confinement.3 See id. at 648, 117 S.Ct. at 1589.

        Appellees contend that Edwards extends Heck to all inmate-discipline decisions.

They argue that “for Appellant’s cause of action to be cognizable he must prove the

disciplinary decision has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of habeas corpus.” However, the

Supreme Court has expressly rejected this interpretation of Heck and its progeny.

        In Muhammad v. Close, a confrontation between Muhammad, an inmate, and

Close, a prison official, led to Muhammad being found guilty of the disciplinary

infraction of insolence, for which he was required to serve a period of detention and

was deprived of privileges for 30 days. Muhammad v. Close, 540 U.S. 749, 752-53, 124

S.Ct. 1303, 1305, 158 L.Ed.2d 32 (2004) (per curiam). Muhammad then filed a section

1983 suit alleging that these disciplinary proceedings were instituted in retaliation for

prior lawsuits and grievances filed against Close. The federal district court granted

Close’s summary-judgment motion on the merits. The Sixth Circuit affirmed, holding

that the suit was barred by Heck. Id. at 753-54, 124 S.Ct. at 1306.

        The Supreme Court reversed, characterizing the proposition that “Heck applies to

all suits challenging prison disciplinary proceedings” as a “mistaken view.” Id. at 754,

124 S.Ct. at 1306. The Court observed, “[T]hese administrative determinations do not as


3
 The Court remanded the case for reconsideration of the inmate’s claims for prospective relief that did
“not necessarily imply the invalidity of a previous loss of good-time credits.” Edwards, 520 U.S. at 648-49,
117 S.Ct. at 1589.


Fernandez v. T.D.C.J.                                                                                Page 5
such raise any implication about the validity of the underlying conviction, and although

they may affect the duration of time to be served (by bearing on the award or

revocation of good-time credits) that is not necessarily so.” Id. The Court reaffirmed

this understanding one year later. See Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct.

1242, 1248, 161 L.Ed.2d 253 (2005) (permitting prisoners to challenge constitutionality of

parole proceedings because prevailing in the lawsuit would result in only a new parole

hearing and not necessarily a “speedier release”).

        Fernandez’s suit challenges the propriety of the prison disciplinary proceeding

against him for possession of contraband.          Success, if any, in this suit will not

necessarily result in his speedier release from prison on the sentence he is serving for

his underlying conviction. See id.; Muhammad, 540 U.S. at 754, 124 S.Ct. at 1306. We

sustain Fernandez’s first issue on this narrow basis and proceed to address the

remaining grounds raised in the motion to dismiss.

                                 Exhaustion of Remedies

        Fernandez claims in his third issue that the trial court erred in dismissing his suit

to the extent that dismissal was based on the defendants’ assertion that he failed to

exhaust his administrative remedies. The defendants assert that Fernandez failed to

exhaust available administrative remedies only with regard to his inverse-

condemnation claim. They argued in the dismissal motion that he “never specifically

grieved the absence of just compensation” in his grievances. However, an inmate need

not specify particular legal theories in his grievance.       Rather, the grievance must

provide prison officials with notice of the relevant “operative facts” that serve as the


Fernandez v. T.D.C.J.                                                                  Page 6
basis for his complaint. See TEX. GOV’T CODE ANN. § 501.008(d) (Vernon 2004); Brewer v.

Simental, 268 S.W.3d 763, 768-69 (Tex. App.—Waco 2008, no pet.) (citing Johnson v.

Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“the primary purpose of a grievance is to alert

prison officials to a problem, not to provide personal notice to a particular official that

he may be sued”)).

        In Johnson, the Fifth Circuit similarly concluded that an inmate grievance need

not specify the particular legal theories that he may choose to allege in a subsequent

lawsuit. “[T]he purpose of the exhaustion requirement is to give prison administrators

an opportunity to address a problem, and they can do this whether or not the prisoner

tells them the constitutional provisions that the problem implicates. Further, TDCJ

rules specifically instruct inmates to provide facts, not legal terminology.” Johnson, 385

F.3d at 518. The operative facts that the defendants allegedly seized property from

Fernandez in violation of his legal rights are clearly spelled out in his grievances.

Nothing more was required. See Brewer, 268 S.W.3d at 769. Fernandez’s third issue is

sustained.

                                  Arguable Basis in Law

        Fernandez’s sixth issue asserts that the trial court erred by dismissing his suit as

frivolous because all his claims have an arguable basis in law and in fact. His fifth issue

asserts that the trial court abused its discretion by dismissing his suit with prejudice.

        A trial court may dismiss a claim as frivolous under chapter 14 if “the claim has

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

14.003(a)(2), (b)(2) (Vernon 2002); Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—


Fernandez v. T.D.C.J.                                                                  Page 7
Fort Worth 2009, pet. denied). “A claim has no arguable basis in law if it relies upon an

indisputably meritless legal theory.” Hamilton, 298 S.W.3d at 339. When, as here, there

has been no fact hearing, our review is limited to the question of whether the claim has

an arguable basis in law.4 Id.; Brewer, 268 S.W.3d at 770. We may affirm the dismissal if

it was proper under any applicable legal theory. Hamilton v. Pechacek, 319 S.W.3d 801,

809 (Tex. App.—Fort Worth 2010, no pet.). If the claim has no arguable basis in law,

then dismissal with prejudice is proper. Hamilton, 298 S.W.3d at 340.

        Texas Tort Claims Act: Fernandez asserts a claim against the defendants under

section 101.021(2) of the Texas Tort Claims Act, alleging that he suffered injury and loss

of the seized property that was caused by the defendants’ use and misuse of prison

documents. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 2005) (“A

governmental unit in the state is liable for . . . personal injury and death so caused by

a condition or use of tangible personal or real property”).

        Under section 101.021(2), a governmental unit can be liable only for “personal

injury” or “death.” Id.; see Jones v. Tex. Dep’t of Crim. Just.-Inst. Div., 318 S.W.3d 398, 404-

05 (Tex. App.—Waco 2010, pet. denied). Fernandez alleges that he suffered property

damage, not personal injury.        His claim under the Texas Tort Claims Act has no

arguable basis in law. See Jones, 318 S.W.3d at 404-05.

        Due Process: Fernandez claims that defendants seized his property without due

process of law in violation of article I, section 19 of the Texas Constitution. A prison



4
  The predominant focus of the hearing on the defendants’ motion to dismiss Fernandez’s suit as
frivolous was on the defendants’ argument that Fernandez’s claims were barred by Heck v. Humphrey.


Fernandez v. T.D.C.J.                                                                      Page 8
official’s wrongful seizure of property does not violate due process if an adequate post-

deprivation remedy is provided. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009).

Texas law provides at least two such remedies: (1) the tort of conversion; id.; and (2) an

administrative remedy under sections 501.007 and 501.008 of the Government Code.

See TEX. GOV’T CODE ANN. §§ 501.007, 501.008 (Vernon 2004); Pechacek, 319 S.W.3d at

814. Fernandez’s due-process claim has no arguable basis in law.

        AD-03.72: Fernandez asserts that AD-03.72 is unconstitutional because it has no

legitimate basis and does not “serve any logical and penological interest.” He also

claims that AD-03.72 was enforced against him in an arbitrary and capricious manner.

These assertions are claims that AD-03.72 is unconstitutional on its face and that

Fernandez’s right to equal protection was violated by the manner in which the

regulation was enforced.

        “[W]hen a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.” Turner

v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987); accord Williams v.

Lara, 52 S.W.3d 171, 193 (Tex. 2001). The inmate bears the burden of proving the

invalidity of the challenged regulation. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct.

2162, 2168, 156 L.Ed.2d 162 (2003).

        We consider four factors in deciding whether the regulation withstands

constitutional challenge: (1) whether the regulation has a “valid, rational connection” to

a legitimate governmental interest; (2) whether alternative means are available to

exercise the asserted right; (3) what impact an accommodation of the right would have


Fernandez v. T.D.C.J.                                                                 Page 9
on prison personnel and resources; and (4) whether “ready alternatives” to the

regulation exist. Id.; Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-62.

        The defendants proffered several interests that they contend AD-03.72 serves.

They note that this regulation enhances inmate safety and diminishes the threat of

inmate violence by removing a de facto currency and by mitigating the hoarding of

materials that may pose a fire hazard. In addition, they note that an inmate who

maintains possession of a commissary item for more than 60 days can procure a new

receipt from the commissary for that item.

        Fernandez offers limited argument in response to these assertions. He does not

question the legitimacy of the interests asserted by the defendants other than to deny

that the regulation serves any legitimate interest. His claim that AD-03.72 serves no

legitimate penological interest has no arguable basis in law. See Johnson v. Tex. Bd. of

Crim. Just., No. 07-20396, 2008 WL 5069357, at *1 (5th Cir. Dec. 2, 2008) (rejecting

inmate’s challenge to constitutionality of restrictions on storage space in AD-03.72).

However, Fernandez’s assertion that AD-03.72 was enforced against him in an arbitrary

and capricious manner states an equal-protection claim with an arguable basis in law.

See Conway v. Castro, No. 12-03-00373-CV, 2004 WL 1103584, at *3 (Tex. App.—Tyler

May 12, 2004, no pet.) (mem. op.).

        Inverse Condemnation: Fernandez claims that his property was taken for a public

use without just compensation. This is an inverse-condemnation claim. See Sw. Bell

Tel., L.P. v. Harris County Toll Rd. Auth., 282 S.W.3d 59, 61 (Tex. 2009) (“To recover on an

inverse-condemnation claim, a property owner must establish that ‘(1) the State


Fernandez v. T.D.C.J.                                                                Page 10
intentionally performed certain acts, (2) that resulted in a “taking” of property, (3) for

public use.’”) (quoting Gen. Servs. Comm’n v. Little Tex Insulation Co., 39 S.W.3d 591, 598

(Tex. 2001)). Specifically, Fernandez asserts that his property was taken for a public use

because AD-03.72 requires that seized property either be re-issued to another inmate or

donated to a charitable organization. The disposition of seized property in either fashion

under AD-03.72 does not establish that the property was taken for a public use. See Tex.

Dep’t of Crim. Just. v. Jackson, No. 01-07-00477-CV, 2008 WL 2209350, at *4-5 (Tex. App.—

Houston [1st Dist.] May 29, 2008, no pet.) (mem. op.).                Fernandez’s inverse-

condemnation claim has no arguable basis in law.

        Conversion: Fernandez asserts that Reid and Barkin unlawfully converted his

personal property.

               To establish conversion of personal property, a plaintiff must prove
        that: (1) the plaintiff owned or had legal possession of the property or
        entitlement to possession; (2) the defendant unlawfully and without
        authorization assumed and exercised dominion and control over the
        property to the exclusion of, or inconsistent with, the plaintiff’s rights as
        an owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P.
        v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole,
        945 S.W.2d 895, 899 (Tex. App.—Austin 1997, pet. denied). If the
        defendant originally acquired possession of the plaintiff’s property
        legally, the plaintiff must establish that the defendant refused to return the
        property after the plaintiff demanded its return. Presley v. Cooper, 155 Tex.
        168, 284 S.W.2d 138, 141 (1955); Apple Imports, 945 S.W.2d at 899.

Lopez v. Lopez, 271 S.W.3d 780, 784 (Tex. App.—Waco 2008, no pet.).

        Fernandez makes no allegation or showing that Reid or Barkin has the power or

duty to return wrongfully seized property. Accordingly, his conversion claim has no

arguable basis in law. See Simmonds v. TDCJ, No. 10-07-00361-CV, 2010 WL 654498, at *6



Fernandez v. T.D.C.J.                                                                    Page 11
(Tex. App.—Waco Feb. 24, 2010, no pet.) (mem. op.).

        Section 1983: Fernandez makes various claims against the individual defendants

under section 1983. He contends that Quarterman violated his rights “by making or

authorizing a policy that he knew or should have known would cause offenders to be

deprived of their du[e] process right to own personal property.” He asserts that Brisher

and Johnson violated his rights by failing “to stop the unlawful and unconstitutional

acts of [their] subordinates,” by acquiescing in their actions, and by providing false

information to conceal the subordinates’ alleged misconduct. He similarly asserts that

Curry violated his rights by failing “to stop unlawful acts of his subordinates” and by

acquiescing in their actions. He also claims that Curry violated his rights by denying

him the right to call witnesses and confront his accusers and by violating TDCJ policies.

He asserts that Reid violated his rights by illegally confiscating his property.          He

contends that Barkin violated his rights by illegally confiscating his property and by

fraudulently completing the required TDCJ paperwork.               And he contends that

Hightower violated his rights by refusing to return his property once he produced

receipts for most of the seized items as required by TDCJ policy.

        Fernandez’s section 1983 claim against Quarterman hinges on AD-03.72 being

found unconstitutional.      We have already concluded, however, that AD-03.72 is

constitutional on its face because it “is reasonably related to legitimate penological

interests.” See Overton, 539 U.S. at 132, 123 S.Ct. at 2167; Turner, 482 U.S. at 89, 107 S.Ct.

at 2261; Williams, 52 S.W.3d at 193. Accordingly, this claim has no arguable basis in law.

        Fernandez’s section 1983 claims against Brisher, Johnson, Curry, Reid, Barkin,


Fernandez v. T.D.C.J.                                                                  Page 12
and Hightower all hinge on their alleged failure to comply with various TDCJ policies

regarding the seizure of contraband and the conduct of disciplinary hearings. “[A]

prison official’s failure to follow the prison’s own policies, procedures or regulations

does not constitute a violation of due process, if constitutional minima are nevertheless

met.” Brewster, 587 F.3d at 768 (quoting Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.

1996)). Fernandez has at least two constitutionally adequate post-deprivation remedies:

(1) the tort of conversion; see id.; and (2) an administrative remedy under sections

501.007 and 501.008 of the Government Code. See TEX. GOV’T CODE ANN. §§ 501.007,

501.008; Pechacek, 319 S.W.3d at 814. Thus, his section 1983 claims against the remaining

defendants have no arguable basis in law.

        In conclusion, all of Fernandez’s claims, except his equal-protection claim, have

no arguable basis in law. Aside from the equal-protection claim, the trial court did not

abuse its discretion in dismissing his claims with prejudice. See Hamilton, 298 S.W.3d at

340. We sustain in part and overrule in part Fernandez’s fifth and sixth issues.

                                 Opportunity to Amend

        Fernandez asserts in his fourth issue that the trial court abused its discretion by

failing to rule on his motion for leave to amend his complaint to correct defects.

Dismissal with prejudice is a ruling on the merits and is improper if based on

procedural defects that the inmate can correct. Id. But if the claim has no arguable basis

in law, then dismissal with prejudice is appropriate and no opportunity to amend need

be given. See id.

        The trial court properly dismissed all but the equal-protection claim with


Fernandez v. T.D.C.J.                                                               Page 13
prejudice because the claims have no arguable basis in law. Accordingly, the trial court

did not abuse its discretion by failing to rule on Fernandez’s motion for leave to amend

his complaint. Fernandez’s fourth issue is overruled.

                                      Open Courts

        Fernandez claims in his second issue that the trial court violated the open-courts

provision of article I, section 13 of the Texas Constitution by dismissing his claims,

rather than permitting him to have a jury trial. Several courts have concluded that the

provisions of Chapter 14 do not violate the open-courts provision. See Hughes v. Massey,

65 S.W.3d 743, 745 (Tex. App.—Beaumont 2001, no pet.); Sanders v. Palunsky, 36 S.W.3d

222, 226-27 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Thomas v. Bush, 23 S.W.3d

215, 218 (Tex. App.—Beaumont 2000, pet. denied); see also Gowan v. Tex. Dep’t of Crim.

Just., 99 S.W.3d 319, 323 (Tex. App.—Texarkana 2003, no pet.). We agree and overrule

Fernandez’s second issue.

        In conclusion, having sustained in part Fernandez’s fifth and sixth issues, we

reverse in part the trial court’s order dismissing Fernandez’s suit as frivolous and

remand this case for further proceedings.        We otherwise affirm the trial court’s

dismissal order.



                                                        REX D. DAVIS
                                                        Justice




Fernandez v. T.D.C.J.                                                              Page 14
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissents. A separate opinion will not issue. He notes,
       however, that he would affirm the trial court’s judgment in its entirety and assess
       all appellate costs against appellant.)
Affirmed in part; reversed and remanded in part
Opinion delivered and filed December 22, 2010
[CV06]




Fernandez v. T.D.C.J.                                                              Page 15
