Opinion filed October 29, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00363-CV
                                     __________

                         DONALD DAVIS, Appellant
                                         V.
                 TEXAS DEPARTMENT OF CRIMINAL
                     JUSTICE ET AL., Appellees


                     On Appeal from the 259th District Court
                                 Jones County, Texas
                           Trial Court Cause No. 022544


                      MEMORANDUM OPINION
      Appellant, Donald Davis, is currently incarcerated at the French M. Robertson
Unit of the Institutional Division of the Texas Department of Criminal Justice,
located in Jones County. Appearing pro se and in forma pauperis, Appellant
challenges the trial court’s order dismissing his suit without a hearing. We affirm.
      On August 2, 2011, Appellant filed the underlying action against the Texas
Department of Criminal Justice (TDCJ). He amended his complaint on August 5,
2011, to include S. Leal, a TDCJ mailroom official. Appellant alleged that Leal
confiscated his publication of Blackmen because it contained “group related
material.” Appellant claimed that he had a four-year paid subscription to the
magazine. Appellant asserted three causes of action in his first amended complaint.
In his first cause of action, he claimed that “Defendant’s negligent use/misuse of
tangible personal property and tort of conversion of Plaintiff’s publication [was] the
proximate cause of Plaintiff’s damages resulting from the Defendant’s negligent
use/misuse and conversion of tangible personal property.” Appellant asserted in his
second cause of action that the “Defendant” violated Appellant’s rights to utilize the
grievance system in violation of the “equal protection of the law.” In his third cause
of action, Appellant claimed that “Defendant’s racial discriminatory practices in its
application of the TDCJ Correspondence Rules violated Plaintiff’s rights to the equal
protection of the law.”     Without holding a hearing, the trial court dismissed
Appellant’s suit as frivolous for failure to comply with Chapter Fourteen of the
Texas Civil Practice and Remedies Code. Appellant filed a motion for new trial,
which was overruled by operation of law.
      On appeal, Appellant presents two issues for our review. In his first issue, he
asserts that the trial court abused its discretion when it dismissed his complaint
without a hearing. He also contends that the trial court erred when it dismissed his
complaint because his claims have an arguable basis in law. Appellant argues in his
second issue that the trial court abused its discretion when it denied his motions for
new trial or allowed the motions to be overruled by operation of law. In addition,
Appellant complains about the trial court’s refusal to grant his motion for default
judgment against Leal.


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      Chapter Fourteen of the Texas Civil Practice and Remedies Code governs in
forma pauperis inmate proceedings. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.002 (West Supp. 2014). A trial court may dismiss a claim, either before or after
service of process, if the court finds that the claim is frivolous or malicious. Id.
§ 14.003(a)(2) (West 2002). To determine whether a claim is frivolous or malicious,
the trial court may consider whether (1) the claim’s realistic chance of ultimate
success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear
that the party cannot prove facts in support of the claim; or (4) the claim is
substantially similar to a previous claim filed by the inmate. Id. § 14.003(b). We
review a dismissal order in lawsuits of this nature for an abuse of discretion.
Simmonds v. Harrison, 387 S.W.3d 812, 814 (Tex. App.—Eastland 2012, no pet.).
A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without
reference to any guiding rules and principles. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
      Appellant alleges in his first issue that the trial court refused to consider his
hearing request in accordance with Section 14.003(c). Appellant cites to Hall v.
Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001, no pet.), in support of his
proposition that “a hearing is absolutely necessary when a party asserts evidence that
could have been presented had there been a hearing.” Section 14.003(c) does not
require a trial court to hold a hearing but, instead, provides that a trial court may hold
a hearing to determine whether a claim is frivolous or malicious. See CIV. PRAC. &
REM. § 14.003(c). In Hall, the court explained that “[n]o abuse of discretion is
shown, where the inmate does not demonstrate that there is evidence he would have
presented had a hearing been held.” 39 S.W.3d at 724 (citing Thomas v. Wichita
Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.—Fort Worth 1997, pet. denied)).
Here, Appellant contends that he offered to present evidence of the papers he filed
with the clerk to show that he complied with Chapter Fourteen’s filing requirements,
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such as the filing of certain affidavits, the inmate trust fund statement, and the written
decisions from the administrative agency. See CIV. PRAC. & REM. §§ 14.003, 14.004,
14.005. He maintains that it was error for the trial court to refuse to hold a hearing
or to consider papers already on file.
      There is no indication in the record that the trial court refused to consider the
papers that Appellant filed with the clerk of the court. Appellant has also not alleged
that there are papers that he filed that are missing from the clerk’s record. Therefore,
Appellant has not demonstrated that he would have presented evidence at the hearing
that was not already before the court.
      Appellant also argues in his first issue that the trial court erred when it
dismissed his suit as frivolous because his claims have an arguable basis in law.
Although we generally review a dismissal order under Chapter Fourteen for an abuse
of discretion, we review whether a claim has an arguable basis in law de novo.
Brewer v. Simental, 268 S.W.3d 763, 770 (Tex. App.—Waco 2008, no pet.). To
determine whether the trial court properly decided that there was no arguable basis
in law for Appellant’s claims, we examine the types of relief and causes of action
pleaded to determine whether, as a matter of law, the petition stated a cause of action
that would authorize relief. Jackson v. Tex. Dep’t of Criminal Justice-Inst. Div., 28
S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied).
      Appellant’s first cause of action contained a claim for negligent use/misuse of
property under the Texas Tort Claims Act and a claim for conversion.
Section 101.021(2) of the Act provides that 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 if the governmental unit would, were it a private person, be liable to
the claimant according to Texas law.” CIV. PRAC. & REM. § 101.021(2) (West 2011).
Appellant argues that his magazine was tangible property and that the TDCJ caused
Appellant’s injury and loss because of its use/misuse of his property. Appellant,
                                            4
however, does not claim that he has suffered a personal injury from the misuse of
his property; therefore, his claim under Section 101.021(2) has no arguable basis in
law. See, e.g., Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010,
no pet.) (citing Jones v. Tex. Dep’t of Criminal Justice-Inst. Div., 318 S.W.3d 398,
404–05 (Tex. App.—Waco 2010, pet. denied)).
      Appellant’s conversion claim also has no arguable basis in law. Conversion
is an intentional tort, and the Texas Tort Claims Act does not waive immunity from
suit for intentional torts alleged against a governmental entity or its employees. See
CIV. PRAC. & REM. § 101.057(2) (“This chapter does not apply to a claim . . . arising
out of assault, battery, false imprisonment, or any other intentional tort.”); Jones,
318 S.W.3d at 404 (“The Texas Tort Claims Act does not waive immunity from suit
for intentional torts.”). Thus, Appellant cannot maintain suit against the TDCJ or
Leal in his official capacity for the tort of conversion. In addition, under Section
101.106(f), Appellant cannot maintain suit against Leal in his individual capacity
because Leal was acting within the scope of his employment as a mailroom official
in the Robertson Unit. See CIV. PRAC. & REM. § 101.106(f) (providing that, “[i]f a
suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee’s employment and if it could have been brought
under this chapter against the governmental unit, the suit is . . . against the employee
in the employee’s official capacity only”). The Supreme Court of Texas has held
that the phrase “under this chapter” is not limited to a tort claim for which the Tort
Claims Act waives immunity but, instead, encompasses all common-law tort
theories, including a claim for an intentional tort. Franka v. Velasquez, 332 S.W.3d
367, 369, 377–80 (Tex. 2011) (relying on Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 658–60 (Tex. 2008)). Therefore, the trial court did not err
when it dismissed Appellant’s first cause of action as frivolous.


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      In his second cause of action, Appellant alleged that the TDCJ violated his
rights to utilize the grievance system for a redress of grievance in violation of the
equal protection of the law afforded by the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, section 19 of the Texas constitution. An
inmate, however, does not have a constitutionally protected right to access a
grievance procedure. See, e.g., Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App—
San Antonio 2009, pet. denied) (citing Newby v. Chambers, No. 14-08-00338-CV,
2009 WL 1416078, at *3 (Tex. App.—Houston [14th Dist.] May 21, 2009, no pet.)
(mem. op.)). Appellant may have a statutory right to access the grievance system
created by the TDCJ; however, Appellant did not allege a statutory violation in this
case. See TEX. GOV’T CODE ANN. § 501.008 (West 2012) (setting out requirements
for inmate grievance system). Moreover, Appellant maintains that, although the
TDCJ failed to process his Step One and Step Two grievance forms, he asserted his
grievance through the appeal process in the correspondence rules.              Based on
Appellant’s own allegations, it appears that he was able to appeal Leal’s decision to
deprive him of his magazine. Therefore, Appellant’s second claim does not have an
arguable basis in law.
      Appellant alleged in his third cause of action that “Defendant’s racial
discriminatory practices in its application of the TDCJ Correspond[e]nce Rules
violated Plaintiff’s rights to the equal protection of the law afforded” by the First,
Fifth, and Fourteenth Amendments to the United States Constitution and by Article I,
section 19 of the Texas constitution and violated his rights under 42 U.S.C. § 1983.
Appellant further asserted that Leal and the TDCJ restricted his “correspond[e]nce
rights solely because Plaintiff is a black prisoner who[se] origin originates in a
minority group that is black” and that they restricted his “correspond[e]nce rights to
a publication company that distributes literature and art of black culture.”


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      We must first determine what precise claim Appellant alleged in his third
cause of action. Although Appellant discusses his right to free speech in his brief,
we do not read Appellant’s third cause of action to state a claim for a violation of his
right to free speech under the First Amendment, nor do we read this cause of action
as a due process claim under the Fifth Amendment. Instead, we read Appellant’s
third cause of action as a claim for racial discrimination. We note that nowhere in
Appellant’s first amended complaint does he mention freedom of speech or due
process. Furthermore, the first sentence in Appellant’s first amended complaint
states, “This is a complaint for violation of the Texas Tort Claims Act and for acts
of racial discrimination in violation of the U.S. and Texas Constitution.” Therefore,
we will address Appellant’s third cause of action as a Section 1983 claim based upon
racial discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment.
      To assert an equal protection claim, Appellant must establish that he was
treated differently than other similarly situated parties and that he was treated
differently without a reasonable basis. Sanders v. Palunsky, 36 S.W.3d 222, 225
(Tex. App.—Houston [14th Dist.] 2001, no pet.). Here, Appellant did not allege
facts that show whether other similarly situated inmates were granted or denied
access to similar publications. In addition, to allege racial discrimination in a
Section 1983 cause of action, Appellant must state specific facts that allege
discrimination, not merely conclusory allegations of discrimination. Geiger v.
Landes, No. 12-01-00152-CV, 2002 WL 169284, at *3 (Tex. App.—Tyler Jan. 31,
2002, pet. denied) (not designated for publication). “A contention is frivolous if no
facts are advanced in support of a mere conclusory allegation.” Id. Here, Appellant
alleged that Leal took his magazine because Appellant was black and because the
magazine contained “literature and art of black culture.” We hold that Appellant’s
allegations are merely conclusory and, thus, that Appellant did not successfully
                                           7
assert a claim for racial discrimination. Therefore, Appellant has failed to state a
cause of action that would afford him relief. Because we have found that Appellant’s
three causes of action have no arguable basis in law, the trial court did not err when
it dismissed Appellant’s suit as frivolous.
     Appellant also claims that the trial court erred when it dismissed his claims
with prejudice. However, the final judgment does not indicate that the trial court
dismissed Appellant’s suit with prejudice. Even if the trial court had dismissed
Appellant’s claims with prejudice, the trial court would not have erred because
dismissal with prejudice is proper when the claims asserted have no arguable basis
in law. See Fernandez, 341 S.W.3d at 13 (citing Hamilton v. Williams, 298 S.W.3d
334, 340 (Tex. App.—Fort Worth 2009, pet. denied)). We overrule Appellant’s first
issue.
         In his second issue, Appellant argues that the trial court abused its discretion
when it denied his motions for new trial and when it allowed the motions to be
overruled by operation of law. The trial court did not rule on Appellant’s motions
for new trial. Rule 329b(c) of the Texas Rules of Civil Procedure states, “In 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.” Because we
have held that the trial court did not err when it dismissed Appellant’s claims as
frivolous on the ground that his claims did not have an arguable basis in law, we also
hold that the trial court did not err when it did not rule on his motions for new trial
and allowed them to be overruled by operation of law.
         Appellant also contends in his second issue that the trial court erred when it
refused to rule on his motion for default judgment against Leal. The trial court
informed Appellant in a letter dated September 19, 2013, that his “case was
dismissed on August 31, 2013, therefore your request for a default judgment is not
                                             8
properly before the court.” It appears that the trial court mistakenly wrote August 31,
2013, instead of August 31, 2011, in its letter to Appellant. The trial court initially
dismissed Appellant’s claims against the TDCJ on August 31, 2011. However, that
judgment did not dismiss the claims against Leal, and the trial court subsequently
entered another judgment dismissing all claims, including those filed against Leal,
on September 23, 2013. Appellant filed his Affidavit for Entry of Default as to Leal
on September 1, 2011; therefore, his motion for default judgment was before the
court prior to the trial court’s entry of the final judgment on September 23, 2013.
We note that the record does not contain a return of service as required under
Rules 107 and 239, and we further note that a trial court may dismiss a suit under
Chapter Fourteen as frivolous prior to service and, thus, also prior to an answer. See
TEX. R. CIV. P. 107(h) (proof of service must be on file with the clerk of the court
for ten days prior to the entry of a default judgment); TEX. R. CIV. P. 239 (judgment
by default); CIV. PRAC. & REM. § 14.003(a)(2) (providing that a trial court may
dismiss a claim, either before or after service of process, if the court finds that the
claim is frivolous or malicious). Appellant’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE
October 29, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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