                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00273-CV

OSVALDO N. CHAPA,
                                                            Appellant
v.

BRAD LIVINGSTON,
                                                            Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 24,673


                          MEMORANDUM OPINION


      Osvaldo N. Chapa, a Texas inmate, filed an in forma pauperis application for writ

of mandamus against Brad Livingston, executive director of the Texas Department of

Criminal Justice, for violations of the Public Information Act. The Texas Attorney

General filed an amicus curiae advisory requesting dismissal of the suit. The trial court

dismissed the suit under Chapter 14 of the Civil Practice and Remedies Code. Chapa

challenges: (1) the dismissal of his lawsuit; (2) TDCJ’s failure to post Chapter 14’s

requirements in the prison law library; (3) the trial court’s failures to conduct a hearing
before dismissal and give him an opportunity to amend his pleadings; (4) violations of

his right to access the courts; and (5) the trial court’s failures to conduct a hearing on his

motion for new trial and file findings of fact and conclusions of law. We affirm.

                                        DISMISSAL

       In point one, Chapa contends that the trial court improperly dismissed his

lawsuit, with prejudice, under Chapter 14 of the Civil Practice and Remedies Code.

       A trial court may dismiss a suit under Chapter 14 if it is frivolous, considering

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 because the claim arises from the same operative facts. TEX. CIV. PRAC. & REM.

CODE ANN. § 14.003(a)(2), (b) (Vernon 2002). When, as here, the trial court determines

without a hearing that a claim is frivolous, that decision may be affirmed on appeal

only if the claim has no arguable basis in law. Long v. Tanner, 170 S.W.3d 752, 754 (Tex.

App.—Waco 2005, pet. denied) (citing Retzlaff v. Tex. Dep’t of Crim. Justice., 94 S.W.3d

650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). We review this issue de

novo. Id. We take the allegations of the plaintiff’s petition as true. Id. (citing Mullins v.

Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex. App.—Texarkana 2003, no pet.)). We

examine the claims asserted and the relief requested “to determine whether, as a matter

of law, the petition stated a cause of action that would authorize relief.” Id. (quoting

Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)).




Chapa v. Livingston                                                                     Page 2
       The trial court dismissed Chapa’s lawsuit for failure to comply with both the

procedural and substantive requirements of Chapter 14.

       Chapter 14 requires an inmate to file (1) an affidavit or unsworn declaration

providing information regarding any previous filings; and (2) an affidavit or unsworn

declaration that states the “date that the grievance was filed and the date the written

decision…was received by the inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)

(Vernon 2002); TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (Vernon 2002). Neither

document was filed with Chapa’s original petition, but Chapa moved to supplement his

petition with the required affidavits. However, Chapa’s affidavit of previous filings

fails to state the “operative facts for which relief was sought.” TEX. CIV. PRAC. & REM.

CODE ANN. § 14.004(a)(2)(A).

       Chapter 14 also requires an inmate to file a claim “before the 31st day after the

date the inmate receives the written decision from the grievance system.” TEX. CIV.

PRAC. & REM. CODE § 14.005(b). Chapa received a response to his step 2 grievance on

March 20, 2009, but filed suit on May 18, more than thirty-one days later. See id.

       Dismissal was proper for failure to comply with the procedural requirements of

sections 14.004(a) and 14.005(b). See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied); see also Allen v. Tex. Dep’t of Crim. Justice-

Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

       Dismissal was also proper for failure to comply with Chapter 14’s substantive

requirements. Chapa alleged that TDCJ violated the First, Fourth, Fifth, Sixth, Eighth,




Chapa v. Livingston                                                                  Page 3
and Fourteenth Amendments to the United States Constitution by ignoring his request

for information under the Public Information Act.

       While a governmental body need not comply with a request for information

from an incarcerated individual, it is not prohibited from disclosing information that

pertains to the inmate. See TEX. GOV’T CODE ANN. § 552.028(a), (b) (Vernon 2004); see also

Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. denied). Because

section 552.028 is not mandatory, but gives the governmental body discretion to

disclose or not disclose the requested information, Chapa’s claim under the Texas

Public Information Act has no arguable basis in law. See Hickman, 976 S.W.2d at 361; see

also Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App.—Dallas 2000, no pet.).

       Because the trial court properly dismissed Chapa’s lawsuit for failure to comply

with the procedural and substantive requirements of Chapter 14, we overrule point one.

                             POSTING REQUIREMENTS

       In point two, Chapa contends that the TDCJ failed to post the requirements of

Chapter 14 in the prison law library.

       The 1995 session law enacting Chapter 14 required TDCJ to “post notice of the

provisions of this Act in each law library maintained by the department or under

contract with the department.” See Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 9, 1995

Tex. Gen. Laws 2921, 2926-27. “[T]he fundamental constitutional right of access to the

courts requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries…” Bounds v.

Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977) (emphasis added).


Chapa v. Livingston                                                                  Page 4
“‘[M]eaningful access to the courts is the touchstone’…and the inmate therefore must

go one step further and demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey,

518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996) (quoting Bounds, 430 U.S.

at 823, 97 S. Ct. at 1495).

       Even had Chapa complied with Chapter 14’s procedural requirements, his

asserted claim has no arguable basis in law. Accordingly, Chapa cannot show that

TDCJ’s failure to post notice of Chapter 14’s requirements rendered the prison law

library so subpar as to hinder his efforts to pursue a legal claim. See Lewis, 518 U.S. at

351, 116 S. Ct. at 2180. We overrule point two.

                    ABSENCE OF HEARING BEFORE DISMISSAL
                  FAILURE TO ALLOW OPPORTUNITY TO AMEND

       In point three, Chapa contends that the trial court violated his rights to due

process, equal protection, and access to courts by failing to hold a hearing before

dismissing his lawsuit and failing to allow him an opportunity to amend.

       Because the decision to hold a hearing on the dismissal of inmate litigation is

within the trial court’s discretion, the trial court did not err by dismissing Chapa’s

lawsuit without a hearing. See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—

Houston [1st Dist.] 2002, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(c);

Long, 170 S.W.3d at 754. Moreover, Chapa’s claim has no arguable basis in law; thus,

dismissal with prejudice was appropriate. See Nabelek v. Dist. Attorney of Harris County,

290 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Williams



Chapa v. Livingston                                                                   Page 5
v. Ballard, No. 10-08-00378-CV, 2009 Tex. App. LEXIS 9246, at *4 (Tex. App.—Waco Dec.

2, 2009, no pet.) (mem. op.). We overrule point three.

                                 ACCESS TO COURTS

       In point four, Chapa contends that the trial court violated his right to open courts

by dismissing his lawsuit. However, Chapter 14 does not violate the constitutional

right to access the courts. See Sanders v. Palunsky, 36 S.W.3d 222, 226-27 (Tex. App.—

Houston [14th Dist.] 2001, no pet.); see also Hughes v. Massey, 65 S.W.3d 743, 745 (Tex.

Sapp.—Beaumont 2001, no pet.); Guynes v. Texas Bd. of Pardons & Paroles, No. 03-99-

00767-CV, 2000 Tex. App. LEXIS 3193, at *13 (Tex. App.—Austin May 18, 2000, no pet.)

(not designated for publication). We overrule point four.

           ABSENCE OF HEARING ON MOTION FOR NEW TRIAL
      FAILURE TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW

       In point five, Chapa challenges the trial court’s failure to hold a hearing on his

motion for new trial and denial of his motion for findings of fact and conclusions of law.

       Because Chapa’s lawsuit was dismissed without a jury, the trial court did not err

by denying Chapa’s motion for new trial without a hearing. See Hamilton v. Williams,

298 S.W.3d 334, 338 (Tex. App.—Fort Worth 2009, pet. filed); see also Jefa Co. v. Mustang

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

denied). Nor was the trial court required to file findings of fact and conclusions of law

when dismissing Chapa’s lawsuit under Chapter 14. See Retzlaff, 94 S.W.3d at 655. We

overrule point five.




Chapa v. Livingston                                                                  Page 6
       We affirm the trial court’s judgment.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed August 25, 2010
[CV06]

*       (Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not
issue.)




Chapa v. Livingston                                                               Page 7
