                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                            NO. 02-07-401-CV


JIM H. HAMILTON, JR.                                            APPELLANT

                                     V.

EDDIE C. WILLIAMS, TOMMY L.                                      APPELLEES
NORWOOD, MICHAEL D. HILL,
T. RODDEY, AND KELLI WARD

                                 ------------

        FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                 ------------

                                OPINION

                                 ------------

                              I. Introduction

     In three issues, pro se Appellant Jim H. Hamilton, Jr. appeals the trial

court’s order dismissing as frivolous his claims against Appellees Eddie C.
Williams, Tommy L. Norwood, Michael D. Hill, T. Roddey, and Kelli Ward. 1 We

affirm.

                   II. Factual and Procedural Background

      Hamilton, an inmate in the James Allred Unit of the TDCJ, filed suit

against TDCJ employees, in their individual and official capacities, on May 2,

2007, complaining that his due process rights and his right to privacy of the

person had been violated. In response, Williams, Norwood, and Hill filed a

motion to dismiss Hamilton’s claims as frivolous on the grounds that (1) the

affidavit Hamilton filed with his petition did not comply with section

14.004(a)(2) of the Texas Civil Practice and Remedies Code; (2) Hamilton failed

to provide copies of his administrative grievances as required by section

14.005(a)(2); (3) Hamilton failed to file a certified copy of his trust account

statement as required by section 14.004(c) and 14.006(f); and (4) Hamilton’s

claims were frivolous because they had no arguable basis in law or fact. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003–.006 (Vernon 2002). The trial

court granted the motion and dismissed with prejudice Hamilton’s suit in its

entirety for failure to comply with chapter fourteen of the civil practice and

remedies code.    Hamilton then filed a motion for new trial and, in the

      1
       … The appellees are employees of the Texas Department of Criminal
Justice (“TDCJ”); therefore, we refer to the appellees collectively as “TDCJ
employees” except where inappropriate.

                                      2
alternative, a motion to reinstate. The trial court did not rule on these motions,

and, accordingly, they were overruled by operation of law.             This appeal

followed.

                    III. Motion for New Trial and to Reinstate

      In his first issue, Hamilton argues that the trial court erred by failing to

rule and conduct a hearing on his motion for new trial and to reinstate.

Although Hamilton presents this issue as pertaining to both his motion for new

trial and his motion to reinstate, his legal argument and analysis refer only to

his motion for new trial; therefore, we do not consider his motion to reinstate.

See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and

to the record.”).

A. Standard of Review

      We review a trial court’s denial of a motion for new trial for an abuse of

discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778–79 (Tex. 1987). To

determine whether a trial court abused its discretion, we must decide whether

the trial court acted without reference to any guiding rules or principles; in other

words, we must decide whether the act was arbitrary or unreasonable. Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).




                                         3
B. Discussion

      Hamilton asserts that the trial court erred by failing to rule and conduct

a hearing on his motion for new trial because he has a constitutional right to

access to the courts. However, Hamilton failed to provide any legal argument

as to how the trial court’s failure to rule on his motion violated his right of

access to the courts; therefore, we need not consider it. See Tex. R. App. P.

38.1(i).

      Next, Hamilton claims that a trial court must consider and rule on a

motion for new trial within a reasonable time. A trial court, however, does not

abuse its discretion by not ruling on a motion and by allowing the motion to be

overruled by operation of law. See Tex. R. Civ. P. 329b(c) (stating that “[i]n

the event an original or amended motion for new trial . . . is not determined by

written order signed within seventy-five days after the judgment was signed,

it shall be considered overruled by operation of law on expiration of that

period”); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 28 (Tex. 1994)

(holding that “trial courts have not even been required to rule on motions for

new trial as the passage of time may serve to overrule a new trial motion by

operation of law”). Therefore, the trial court did not abuse its discretion by not

ruling on Hamilton’s motion for new trial.




                                        4
      Finally, Hamilton argues that because his motion for new trial raised

issues not determinable from the record, including information not previously

available to him, the trial court abused its discretion by not holding a hearing.

However, whether to hold an evidentiary hearing on a motion for new trial in

a civil matter is within the trial court’s discretion unless the ground for the

motion is jury misconduct. Parham v. Wilbon, 746 S.W.2d 347, 351 (Tex.

App.—Fort W orth 1988, no writ); see also Jefa Co. v. Mustang Tractor &

Equip. Co., 868 S.W.2d 905, 909 (Tex. App.—Houston [14th Dist.] 1994, writ

denied). Contra Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005)

(generally, in a criminal case, a trial court should hold an evidentiary hearing on

a motion for new trial if the motion and attached affidavit raise matters that are

not determinable from the record and that demonstrate reasonable grounds that

could entitle the accused to relief); Reyes v. State, 849 S.W.2d 812, 816 (Tex.

Crim. App. 1993) (holding in a criminal case that defendant is entitled to a

hearing on motion for new trial when motion for new trial “reflect[s] that

reasonable grounds exist for holding that” motion for new trial could be

granted).




                                        5
      Here, Hamilton did not raise jury misconduct as a ground in his motion;2

therefore, the trial court did not abuse its discretion by failing to hold an

evidentiary hearing on Hamilton’s motion for new trial. Id. Accordingly, we

overrule Hamilton’s first issue.

                             IV. Fundamental Error

      In his second issue, Hamilton multifariously argues that the trial court

committed fundamental error by dismissing an arguable claim without giving

him (1) notice of the pending motion to dismiss, (2) an opportunity to be heard

on the motion, and (3) an opportunity to amend his complaint and affidavit.3


      2
        … Hamilton asserted six grounds in his motion for new trial: (1) the trial
court failed to schedule a hearing date and refused to rule on Hamilton’s
objections to the motion to dismiss; (2) the trial court erred by refusing to hold
a hearing or rule on Hamilton’s motion for default judgment, motion for leave
and application for writ of mandamus, motion for leave to amend affidavit, and
objection to Williams, Norwood, and Hill’s motion to dismiss; (3) Hamilton was
entitled to a no-answer default judgment against Roddey and Ward; (4) the trial
court’s order to dismiss was not a valid order because it was not sufficiently
definite and certain to define the factors of chapter fourteen on which its
decision was based and does not dispose of all the defendants to the suit and
the capacity in which they were sued; (5) the trial court committed fundamental
error by dismissing Hamilton’s suit on the merits with prejudice and including
a statement that all claims not previously ruled upon were denied; and (6) the
trial court committed fundamental error when it dismissed Hamilton’s arguable
claims without giving note of Hamilton’s pending motion to dismiss and an
opportunity to Hamilton to amend his complaint and affidavit before ruling.
      3
       … An issue is multifarious when it generally attacks the trial court’s order
with numerous arguments. See Hollifield v. Hollifield, 925 S.W.2d 153, 155
(Tex. App.—Austin 1996, no writ); Clancy v. Zale Corp., 705 S.W.2d 820, 823
(Tex. App.—Dallas 1986, writ ref’d n.r.e.). We may disregard any assignment

                                        6
Hamilton engrafts into his argument complaints that (1) his due process rights

were violated, (2) he is entitled to declaratory and injunctive relief, and (3) his

right to privacy in his person was violated. In his third issue, Hamilton contends

that the trial court committed fundamental error by dismissing his case with

prejudice in its entirety. Because Hamilton’s second and third issues overlap,

we address them simultaneously.

A. Applicable Law

      We review a dismissal under chapter fourteen for an abuse of discretion

per the standard set out above. Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.

App.—Fort Worth 2004, pet. denied).

      In order to control inmate litigation, which may be frivolous, the

legislature enacted chapter fourteen of the civil practice and remedies code.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002).

Chapter fourteen “applies only to a suit brought by an inmate in a district,

county, justice of the peace, or small claims court in which an affidavit or

unsworn declaration of inability to pay costs is filed by the inmate.”          Id.



of error that is multifarious. See Hollifield, 925 S.W.2d at 155; Clancy, 705
S.W.2d at 824. Alternatively, we may consider a multifarious issue if we can
determine, with reasonable certainty, the error about which complaint is made.
See Green v. Kaposta, 152 S.W.3d 839, 842 n.2 (Tex. App.—Dallas 2005, no
pet.). Although Hamilton’s second issue is multifarious, we are able to follow
a majority of the argument and will proceed. See Tex. R. App. P. 38.9.

                                        7
§ 14.002. Chapter fourteen sets forth procedural requirements an inmate must

satisfy as a prerequisite to filing suit. Id. §§ 14.002, 14.004–.006; see also

Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet.

denied). Should the inmate fail to comply with these requirements, his suit will

be dismissed. Lilly, 100 S.W.3d at 336 (citing Bell v. Tex. Dep't of Criminal

Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.]

1998, pet. denied)).

      However, even if an inmate satisfies the necessary filing requirements,

the trial court may dismiss an inmate’s claim if it finds the claim to be frivolous

or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003; 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 or malicious if it has no basis in law or

fact. Comeaux, 193 S.W.3d at 86. 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.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003; Scott v. Gallagher, 209 S.W.3d

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




                                        8
      In conducting our review, we take as true the 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. 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 relies upon 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. Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex.

App.—Fort Worth, 2008 no pet.); 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. Tex. Civ. Prac.

& Rem. Code Ann. § 14.005; Retzlaff, 94 S.W.3d at 653.

      Finally, when we review a trial court’s dismissal with prejudice under

chapter fourteen, we consider whether the inmate could remedy the error

through a more specific pleading. Williams v. Brown, 33 S.W.3d 410, 412

(Tex. App.—Houston [1st Dist.] 2000, no pet.); see Denton v. Hernandez, 504

U.S. 25, 34, 112 S. Ct. 1728, 1734 (1992) (construing the federal in forma

pauperis statute and finding that appellate courts should review whether

                                       9
dismissal was with or without prejudice); Lentworth v. Trahan, 981 S.W.2d

720, 722–23 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (listing the

instances in which a suit may be dismissed with prejudice); see also Holloway

v. Anderson, No. 13-00-00369-CV, 2001 WL 34615356, at *3 (Tex.

App.—Corpus Christi Aug. 16, 2001, no pet.) (not designated for publication)

(same).

B. Notice and Opportunity to be Heard

      Hamilton asserts that he was entitled to notice of the pending motion to

dismiss and an opportunity to be heard on the motion. However, an inmate

who brings a claim falling within the scope of chapter fourteen has no right to

notice of a motion to dismiss, nor to a mandatory hearing. See Tex. Civ. Prac.

& Rem. Code Ann. § 14.002 (stating that trial court may dismiss inmate’s

claims before service of process); Huges v. Massey, 65 S.W.3d 743, 745 (Tex.

App.—Beaumont 2001, no pet.) (holding that inmate had no right to notice of

motion to dismiss or opportunity to amend); Thomas v. Wichita Gen. Hosp.,

952 S.W.2d 936, 938 (Tex. App.—Fort Worth 1997, pet. denied) (stating that

court’s determination whether to hold a hearing is discretionary). Therefore,

the trial court did not abuse its discretion by not giving Hamilton notice of the

pending motion or by dismissing his claims without a hearing. Accordingly, we

overrule this portion of Hamilton’s second issue.

                                       10
C. Opportunity to Amend

      Hamilton further claims that the trial court abused its discretion by

dismissing his claims with prejudice without giving him an opportunity to amend

his complaint and affidavit. We disagree.

      A dismissal with prejudice is a ruling on the merits and is therefore

improper if the trial court’s dismissal is based on procedural defects that the

inmate can remedy.       See Garrett v. Williams, 250 S.W.3d 154, 160 (Tex.

App.—Fort Worth 2008, no pet.); Hickman v. Adams, 35 S.W.3d 120, 125

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (holding that dismissal under

section 14.004 is not dismissal on the merits and thus trial court abuses its

discretion if it dismisses with prejudice a claim where procedural defect can be

remedied). However, if the trial court’s dismissal is based on the conclusion

that the inmate’s claim has no arguable basis in law, then a dismissal with

prejudice is proper. See Nabelek v. Dist. Att’y of Harris County, No. 14-03-

00965-CV, 2005 WL 2148999, at *7 (Tex. App.—Houston [14th Dist.] Sept.

8, 2005, pet. denied). Therefore, we must determine whether the trial court

could have dismissed Hamilton’s claims on the grounds that they had no

arguable basis in law.

      1. Right to Due Process




                                      11
      Hamilton made various allegations with respect to the TDCJ employees’

violations of TDCJ policies and procedures for initiating, conducting, and

reviewing disciplinary proceedings against inmates. Hamilton’s complaints stem

from a disciplinary hearing at which, he alleges, the officer conducting the

hearing refused to accept or review an affidavit he submitted in his defense.

At the end of the hearing, the officer imposed a punishment of fifteen days of

cell restriction and loss of commissary privileges. Hamilton argued that the

TDCJ employees’ failure to follow TDCJ’s policies and procedures with respect

to disciplinary proceedings violated his due process rights and deprived him of

his liberty interest under the federal constitution.

      However, to bring a due process claim in this context, the plaintiff must

assert a property interest that is protected by the Fourteenth Amendment of the

United States Constitution or article I, section 19 of the Texas constitution.

See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570–71, 92 S. Ct.

2701, 2705–06 (1972); Concerned Cmty. Involved Dev., Inc. v. City of

Houston, 209 S.W.3d 666, 671 (Tex. App.—Houston [14th Dist.] 2006, pet.

denied). If the plaintiff does not assert a protected property interest, the trial

court lacks jurisdiction over the suit. See Nat'l Collegiate Athletic Ass'n v. Yeo,

171 S.W.3d 863, 870 (Tex. 2005). The Yeo court stated, “To have a property

interest in a benefit, a person clearly must have more than an abstract need or

                                        12
desire for it. He must have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.” Id. at 870 n.19 (quoting

Roth, 408 U.S. at 577, 92 S. Ct. at 2709).

      Cell restrictions and loss of commissary privileges are merely changes in

the conditions of an inmate’s confinement and do not implicate due process

concerns. See Malichi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison

v. Parker, 104 F.3d 765, 767–68 (5th Cir. 1997) (evaluating inmate’s claimed

denial of due process at disciplinary hearing based on allegation that he was

refused opportunity to offer documentary evidence and holding that loss of

commissary privileges and imposition of cell restrictions do not implicate due

process concerns). Therefore, the trial court properly concluded that Hamilton’s

due process claims had no arguable basis in law and, consequently, did not

abuse its discretion by dismissing these claims with prejudice under chapter

fourteen. See Nabelek, 2005 WL 2148999, at *7. Accordingly, we overrule

the portions of Hamilton’s second and third issues pertaining to his due process

claims.

      2. Right to Privacy in his Person

      Hamilton also asserts that he has a constitutional right to not be

unnecessarily viewed by persons of the opposite sex while he is naked.

Specifically, Hamilton claims that a female officer looked into his cell without

having a penological interest, in violation of his constitutional right to privacy

                                       13
in his person. He asked the trial court to declare that his constitutional right to

privacy in his person had been violated and to enter a permanent injunction

against future violations.    However, Hamilton failed to properly exhaust

administrative remedies before filing suit on this claim.

      The legislature mandated that TDCJ develop and maintain an inmate

grievance system. Tex. Gov’t Code Ann. § 501.008(a) (Vernon 2004). The

administrative grievance process established by TDCJ begins with an informal

attempt to resolve the problem. If the informal attempt is unsuccessful, two

steps follow. The inmate has fifteen days from the grievable event to forward

a step one grievance form to the unit grievance investigator. If unsatisfied with

the step one decision, the inmate may appeal by submitting a step two form to

the unit grievance investigator within fifteen days of the step one response.

Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 52 (rev. Nov.

2004), http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf.

      Here, in the first step of the grievance process, Hamilton asserted a claim

for violation of his constitutional right to privacy in his person; however,

Hamilton failed to follow through and reassert this claim in the second step of

the grievance process. As a result, Hamilton did not allow the prison officials

an opportunity to correct any alleged errors. See Woodford v. Ngo, 548 U.S.

81, 85, 126 S. Ct. 2378, 2382 (2006) (discussing exhaustion requirement

under 42 U.S.C. § 1997e(a), Prison Litigation Reform Act); Pozo v.

                                        14
McCaughtry, 286 F.3d 1022, 1023–24 (7th Cir. 2002) (stating that

administrative grievance procedure gives prison administration opportunity to

fix problem or mitigate damages and shed light on factual disputes attending

prospective litigation if inmate is not satisfied). In other words, Hamilton failed

to exhaust his administrative remedies. See Leachman, 261 S.W.3d at 311

(concluding that appellant failed to exhaust his remedies through the grievance

process as to two of the appellees because he did not include the names of the

two appellees in the second step of the grievance process); see also Wolf v.

Tex. Dep’t of Criminal Justice, Inst. Div., 182 S.W.3d 449, 451 (Tex.

App.—Texarkana 2006, pet. denied) (“Wolf’s grievance does not address the

issues he brought in his civil petition, and we cannot say he either sought or

received a final administrative decision on those issues.”); Riddle v. TDCJ-ID,

No. 13-05-00054-CV, 2006 WL 328127, at *2 (Tex. App.—Corpus Christi

Feb. 9, 2006, pet. denied) (mem. op., not designated for publication) (“Riddle

did not exhaust the grievance procedures for those individuals named in the

claim who were not named in the grievance. Thus, Riddle did not fulfill all

statutory procedural requirements.”).        As a result of Hamilton’s failure to

exhaust his administrative remedies, the trial court properly concluded that

Hamilton’s privacy claim had no arguable basis in law. See Leachman, 261

S.W.3d at 311; Retzlaff, 94 S.W.3d at 653 (stating that failure to exhaust

administrative remedies will result in a claim that has no arguable basis in law).

                                        15
Therefore, because Hamilton cannot remedy the error through a more specific

pleading, the trial court did not abuse its discretion by dismissing Hamilton’s

privacy claim with prejudice under chapter fourteen.          See Leachman, 261

S.W.3d at 311; see also Nabelek, 2005 WL 2148999, at *7 (concluding that

dismissal with prejudice is appropriate when claim has no arguable basis in

law).

        Furthermore, although we interpret a portion of Hamilton’s arguments to

assert that sovereign immunity does not apply to the TDCJ employees, in their

individual and official capacities and, therefore, the TDCJ employees are not

immune to Hamilton’s claims, because we conclude that Hamilton’s claims have

no arguable basis in law, we need not address this immunity argument. See

Tex. R. App. P. 47.1.       Accordingly, we overrule the remaining portions of

Hamilton’s second and third issues.

                                   V. Conclusion

        Having overruled all three of Hamilton’s issues, we affirm the trial court’s

judgment.

                                              BOB MCCOY
                                              JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DAUPHINOT, J. concurs with opinion.

DELIVERED: August 31, 2009



                                         16
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 02-07-401-CV


JIM H. HAMILTON, JR.                                                APPELLANT

                                        V.

EDDIE C. WILLIAMS, TOMMY L.                                          APPELLEES
NORWOOD, MICHAEL D. HILL,
T. RODDEY, AND KELLI WARD

                                    ------------

         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                         CONCURRING OPINION

                                    ------------

      I agree with most of the majority’s opinion, but I write separately because

I disagree with this court’s precedent regarding hearings on motions for new

trial. As the majority notes, this court has held that whether to hold a hearing

on a motion for new trial is discretionary with the trial court unless the ground
asserted in the motion is jury misconduct.1 I believe that this court should

follow the rule applied by other courts of appeals and in criminal law—that a

trial court must hold a hearing on a motion for new trial if the motion “presents

a question of fact upon which evidence must be heard” and alleges facts that,

if true, would entitle the movant to a new trial.2 But because the outcome in

this case would not be different under that rule, I concur.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

DELIVERED: August 31, 2009




      1
      … See Parham v. Wilbon, 746 S.W.2d 347, 351 (Tex. App.—Fort Worth
1988, no writ); see also Taylor v. Taylor, No. 02-05-00435-CV, 2007 WL
2460359, at *6 (Tex. App.—Fort Worth Aug. 31, 2007, pet. denied).
      2
      … Cecil v. Smith, 804 S.W.2d 509, 512 n.5 (Tex. 1991) (citing Parham,
746 S.W.2d at 351); see also Hawkins v. Howard, 97 S.W.3d 676, 678 (Tex.
App.—Dallas 2003, no pet.).

                                       2
