                             NUMBER 13-05-00328-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KIRK WAYNE MCBRIDE, SR.,                                                      Appellant,

                                            v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
CORRECTIONAL INSTITUTIONAL DIVISION,                                           Appellee.


      On appeal from the 36th District Court of Bee County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       Appellant, Kirk Wayne McBride, Sr., proceeding pro se and in forma pauperis, filed

a lawsuit against the Texas Department of Criminal Justice–Correctional Institutional

Division (the “Department”) complaining of the outcome of a disciplinary proceeding that

resulted from a routine cell search. By two issues, appellant contends the trial court erred

in dismissing his claims as frivolous under chapter 14 of the Texas Civil Practice and
Remedies Code. See TEX . CIV. PRAC . & REM . CODE ANN §§ 14.001-.014 (Vernon 2002).

Finding no abuse of discretion, we affirm.1

                                            I. BACKGROUND

        Appellant was charged with a prison disciplinary action.2 After exhausting his

administrative remedies challenging the finding of guilt, appellant sought judicial review of

the decision of the administrative agency or body to uphold its guilt finding. See TEX .

GOV’T . CODE ANN . § 501.008 (Vernon 2003). At the hearing on the Department’s motion

to suppress, the Department argued that appellant was trying to attack a conviction that

he received as a result of a disciplinary case, which could only be accomplished through

a habeas corpus proceeding as opposed to a civil lawsuit brought under Title 42 U.S.C.,

section 1983.3 In response, appellant attempted to explain that the proceeding he initiated

was not a lawsuit under section 1983 and that he utilized the grievance procedure in

regards to an appeal and got no favorable results. At the conclusion of the hearing, the

district court concluded that because appellant had stated that he wanted his good-time

credit back and the disciplinary action taken off his record, his proper recourse was to file

a petition for habeas corpus.



        1
          See Jackson v. Tex. Dep’t of Crim. Justice-Inst. Div., 28 S.W .3d 811, 813 (Tex. App.–Corpus Christi
2000, pet. denied) (providing that the proper standard of review for the dism issal of a frivolous claim pursuant
to chapter fourteen is abuse of discretion).

        2
          As a result of the disciplinary action, appellant received a reprim and which caused him to lose thirty
days of good-conduct tim e.

        3
            In addition, the Departm ent argued that appellant could not bring a suit against it under Title 42
U.S.C., section 1983 because it is not a “person” as contem plated by section 1983. See Retzlaff v. Tex. Dep’t
of Crim. Justice, 135 S.W .3d 731, 744 (Tex. App–Houston [1st Dist.] 2003, no pet.) (citing Denson v. T.D.C.J.-
I.D., 63 S.W .3d 454, 461 (Tex. App.–Tyler 1999, pet. denied) (stating the Departm ent is not a “person” who
can be sued under section 1983)). Given the disposition of this appeal, we need not address this argum ent.
See T EX . R. A PP . P. 47.1.

                                                       2
                                              II. DISCUSSION

        Although appellant alleges that he has an inherent right of appeal from the action

of an administrative agency, he is, in fact, seeking relief from a disciplinary finding which

is a challenge to the fact and duration of his custody.4

        If a prisoner challenges a “single allegedly defective hearing,” he attacks, in
        essence, the fact and duration of his custody. Whatever the nature of the
        relief he seeks for an isolated violation, the prisoner must resort to habeas
        corpus and exhaust state remedies. On the other hand, we have suggested
        that “a broad due process challenge” to a prison disciplinary system would
        represent a challenge to conditions of confinement, for which, a civil rights
        remedy would be available.

Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983). It is well-settled that if an inmate

wishes to challenge a disciplinary conviction or punishment received while incarcerated,

as in this case, he must file a habeas corpus action in federal court. See id.; see also

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that the sole remedy in federal

court for a prisoner seeking restoration of good-time credit is a writ of habeas corpus); Ex

parte Brager, 704 S.W.2d 46, 46 (Tex. Crim. App. 1986) (en banc) (concluding state courts

will not entertain state habeas actions challenging violations of prison disciplinary

procedures). We, therefore, conclude appellant did not file his claim in the correct court,

and thus the claim has no arguable basis in law. See TEX . CIV. PRAC . & REM . CODE ANN .

§ 14.003(b)(2) (Vernon 2002). Since there is no viable claim, we conclude the trial court

did not abuse its discretion when it dismissed appellant’s claim. See id. § 14.003(b).

        We overrule appellant’s issues on appeal.


        4
           Appellant’s petition states, “[t]he finding of guilt was not supported by substantial evidence or facts
which would allow the agency’s decision to stand, that the Petitioner possessed an alcoholic beverage
because there was no expert testim ony or tests conducted that can conclude [sic] an inference that the
Petitioner possessed an alcoholic beverage.”

                                                        3
                                   III. CONCLUSION

      The judgment of the trial court is affirmed.



                                  /s/ ROGELIO VALDEZ
                                  ROGELIO VALDEZ,
                                  Chief Justice



Memorandum Opinion delivered and filed
this the 13th day of March, 2008.




                                            4
