      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00008-CV



                                  Martin T. Franco, Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. D-1-GN-08-002053, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Martin T. Franco, Jr., an inmate in state prison, filed suit against the State of Texas

alleging that the State violated his constitutional rights by placing him in administrative segregation.

The State filed a motion to dismiss the complaint for failure to comply with the requirements of

chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.001 et seq. (West 2002). The district court granted the State’s motion and dismissed the case

as frivolous. Franco appeals from the district court’s order.

                 Franco’s contentions—asserted in a two-page “Appeal Brief”—are not entirely clear.1

However, Franco lists three reasons why he believes the district court’s “conclusion in this cause

was wrong”: (1) the district clerk’s office refused to file his “motion for extension of time to file a

petition of discovery”; (2) his claims “are not frivolous but serious issues”; and (3) he exhausted


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            The State declined to file a brief in response unless we requested one.
his administrative remedies by filing a grievance with the senior warden of his prison and the

assistant regional director of TDCJ-Correctional Institutions Division. We will liberally construe

these arguments to be points of error on appeal. See Tex. R. App. P. 38.9.

               Franco’s second point of error, fairly construed, is a challenge to the district court’s

dismissal of Franco’s complaint as frivolous. We review a dismissal pursuant to chapter 14 under

an abuse-of-discretion standard. Presiado v. Sheffield, 230 S.W.3d 272, 274 (Tex. App.—Beaumont

2007, no pet.). A trial court has broad discretion to dismiss an inmate’s suit as frivolous “because:

(1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma

pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues

to the benefit of state officials, courts, and meritorious claimants.” Retzlaff v. Texas Dep’t of Crim.

Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding

rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Because the district court did not state the basis on which it dismissed Franco’s suit, we

will affirm on any basis supported by the record. See Sellers v. Foster, 199 S.W.3d 385, 391

(Tex. App.—Fort Worth 2006, no pet.).

               In determining whether a claim is frivolous or malicious, the 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 because the claim

arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (West 2002).



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In this case, the district court would not have abused its discretion in determining that Franco’s

claim has no arguable basis in law or fact. Among other things, “absent extraordinary circumstances,

administrative segregation as such, being an incident to the ordinary life of a prisoner, will never be

a ground for a constitutional claim.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (labeling

such claim “frivolous”); Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996) (finding that

inmate’s claim under 42 U.S.C. § 1983 had no arguable basis in law because “administrative

segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable

liberty interest”). In his petition, Franco alleged no such extraordinary circumstances. We overrule

Franco’s second point of error.

                In his third point of error, Franco contends that he exhausted his administrative

remedies by filing a grievance with prison officials. Franco appears to be referencing the

requirement in chapter 14 that prisoners cannot file a claim in court that is subject to their

prison’s grievance system without first exhausting those administrative remedies. See Tex. Civ.

Prac. & Rem. Code Ann. § 14.005 (West 2002). Franco has not complied with section 14.005’s

requirements for demonstrating such exhaustion. See id. § 14.005(a). In any event, because we

have concluded that the district court would not have abused its discretion in dismissing Franco’s

complaint as frivolous, the judgment can stand on that ground alone. We overrule Franco’s

third point of error.

                Finally, regarding his first point of error, Franco presents no argument or authority

as to why his alleged “motion for extension of time to file a petition of discovery”—which is not in

the record before us—would warrant reversal of the district court’s judgment. It was Franco’s



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burden to do so. 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.”); see also

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (“Litigants who represent

themselves must comply with the applicable procedural rules, or else they would be given an unfair

advantage over litigants represented by counsel.”). We conclude that this point presents nothing

for review. We overrule Franco’s first point of error.

               We affirm the order of the district court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 24, 2009




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