Opinion filed September 20, 2018




                                     In The

        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00281-CV
                                  __________

                         DONALD DAVIS, Appellant
                                        V.
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee


                    On Appeal from the 259th District Court
                            Jones County, Texas
                        Trial Court Cause No. 023892


                     MEMORANDUM OPINION
      This is an appeal from the dismissal of a pro se, in forma pauperis lawsuit
brought by inmate Donald Davis against the Texas Department of Criminal Justice
(TDCJ). See TEX. CIV. PRAC. & REM. CODE ANN. ch. 14 (West 2017). After
considering a response filed on behalf of TDCJ, the trial court entered a final
judgment in which it dismissed Davis’s claims as frivolous under Chapter 14. Davis
subsequently filed a motion for sanctions under Rule 13 of the Texas Rules of Civil
Procedure, which the trial court denied. On appeal, Davis presents two issues: one
challenging the dismissal under Chapter 14 and one challenging the denial of
sanctions. We affirm.
        Davis alleged in his pleadings that TDCJ increased its maximum capacity
without adequate investigation and incorrectly decided Davis’s indigent-postage
dispute without adequate investigation. Davis sought the following declaratory
relief: Declare that TDCJ’s increase in maximum capacity violated provisions of the
Texas Government Code1 because the increase resulted in inadequate staff to
investigate Davis’s dispute and inadequate staff to properly implement the
administrative rules regarding indigent postage and supplies. Davis also sought
injunctive relief and a declaration that prisoners have a protected property interest in
their inmate trust fund account and that TDCJ cannot assign debts to an inmate trust
fund account based on incorrect, arbitrary, or capricious application of
administrative rules regarding indigent postage and supplies. Davis additionally
asserted that TDCJ violated the Texas Open Meetings Act2 with respect to “meetings
to change or revise Board Policy (BP) 03.91 I C 6.” We note that BP-03.91,
section I.C.6 was revised in 2013 to provide that certain quantities of postage and
stationery “shall be furnished to an indigent offender” but that “[f]unds expended by
the TDCJ for postage and stationery for indigent offenders shall be recouped by the
TDCJ from funds later deposited in the offender’s [inmate trust fund] account.”3




        1
          Davis cited Section 499.102(a)(7)(D) and (a)(12). See TEX. GOV’T CODE ANN. § 499.102 (West
2012). This statute provides that the staff of TDCJ “may recommend to the administration of the
institutional division that the maximum capacity . . . be increased if the staff determines” that the increase
can be made and still provide sufficient staff to “provide adequate internal affairs investigation and review”
and “adequate assistance from persons trained in the law or a law library with a collection containing
necessary materials and space adequate for inmates to use the law library for study related to legal matters.”
Id. § 499.102(a)(7)(D), (a)(12).
        2
         Id. ch. 551 (West 2017 & Supp. 2017).
        3
         https://www.tdcj.state.tx.us/documents/policy/BP0391.pdf.

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      In his first issue, Davis asserts that the trial court abused its discretion when it
dismissed his petition as frivolous under Chapter 14 and when it permitted his
motion for new trial to be overruled by operation of law. The legislature enacted
Chapter 14 to control the flood of frivolous lawsuits being filed in Texas courts by
prison inmates, as these suits consume many valuable judicial resources with little
offsetting benefits. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort
Worth 2010, no pet.) (citing Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—
Fort Worth 2004, pet. denied)). Under Chapter 14, a trial court may dismiss a claim
by an inmate if it finds the claim to be frivolous or malicious. CIV. PRAC. & REM. §
14.003(a)(2); see Comeaux v. Tex. Dep’t of Criminal Justice, 193 S.W.3d 83, 86
(Tex. App.—Houston [1st Dist.] 2006, pet. denied). To determine whether a claim
is frivolous or malicious, a 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. CIV. PRAC. &
REM. § 14.003(b).
      We review a Chapter 14 dismissal for an abuse of discretion. Gross v. Carroll,
339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When an
inmate’s lawsuit is dismissed as frivolous for having no basis in law or in fact but
no fact hearing is held, the appellate court’s review will focus on whether the lawsuit
has an arguable basis in law. Calton v. Schiller, 498 S.W.3d 247, 253 (Tex. App.—
Texarkana 2016, pet. denied). Whether a claim has an arguable basis in law is a
legal question that we review de novo. Hamilton, 319 S.W.3d at 809. “A claim has
no arguable basis in law if it relies upon an indisputably meritless legal theory.” Id.
On appeal, we take as true the factual allegations in an inmate’s petition and consider
whether, as a matter of law, the inmate stated a cause of action that would authorize


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relief. Id. We will affirm the dismissal if it was proper under any legal theory. Id.
(citing Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990)).
      Here, Davis’s claims have no arguable basis in law.           Davis relies on
Section 499.110 of the Texas Government Code and Section 37.004 of the Texas
Civil Practice and Remedies Code (a provision in the Uniform Declaratory
Judgments Act (UDJA)) as authority for the trial court to consider his claims for
declaratory relief. See TEX. GOV’T CODE ANN. § 499.110 (West 2012) (providing
that subchapter B of the Administrative Procedure Act (APA) applies to decisions
made under Sections 499.102–499.109 of the Government Code); CIV. PRAC. &
REM. § 37.004 (West 2015); see also GOV’T ch. 2001 (West 2016 & Supp. 2017)
(the APA).
      With respect to Davis’s claims for declaratory relief under the Government
Code, we note that the validity or applicability of an administrative rule may, in
certain situations, be determined in an action for declaratory judgment. GOV’T
§ 2001.038.    However, Davis’s claims are explicitly excluded by the APA.
Section 2001.226 provides that the APA “does not apply to a rule or internal
procedure of the Texas Department of Criminal Justice or Texas Board of Criminal
Justice that applies to an inmate . . . or to an action taken under that rule or
procedure.” Id. § 2001.226. We note also that this suit was not brought in a Travis
County district court as required by the APA. See id. § 2001.038(b).
      With respect to Davis’s claims for declaratory relief under the UDJA, we
observe that state agencies are immune from suits under the UDJA unless the
legislature has waived immunity for the particular claims at issue. Texas Dep’t of
Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). Davis has not challenged the
validity of a statute; instead, he complains of TDCJ’s lack of compliance with the
provisions of a statute. Davis did not bring this action against a state official or
employee of TDCJ. TDCJ is immune from Davis’s claims under the UDJA. See
                                         4
City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73, 373 n.6 (Tex. 2009); see also
Sefzik, 355 S.W.3d at 621–22.
       With respect to Davis’s claim under the Open Meetings Act, he asserted that
TDCJ violated that Act, and he requested a trial court finding to that effect. In an
amicus curiae advisory to the trial court, the Attorney General of Texas attached the
minutes from a TDCJ meeting related to BP-03.91, about which Davis complains.
The schedule, the agenda, and the minutes of the 168th meeting of the Texas Board
of Criminal Justice on August 23, 2013, belie the assertions made by Davis. See
http://www.tdcj.state.tx.us/documents/TBCJ_Schedule_2013-08.pdf              (schedule);
http://www.tdcj.state.tx.us/documents/TBCJ_Summary_2013-08.pdf (agenda and
minutes).
       Finally, Davis’s request for injunctive relief was also frivolous. To be entitled
to injunctive relief, Davis would have to show the existence of a wrongful act,
imminent harm, and irreparable injury and the absence of an adequate remedy at
law. See Morris v. Collins, 881 S.W.2d 138, 140 (Tex. App.—Houston [1st Dist.]
1994, writ denied). We conclude that the trial court did not abuse its discretion by
dismissing Davis’s claims as frivolous under Chapter 14. Furthermore, the trial
court did not abuse its discretion when it permitted the motion for new trial to be
overruled by operation of law. See TEX. R. CIV. P. 329b(c). We overrule Davis’s
first issue.
       In his second issue, Davis asserts that the trial court abused its discretion when
it denied Davis’s request for Rule 13 sanctions without holding a hearing thereon.
See TEX. R. CIV. P. 13. The record reflects that Davis requested sanctions against
the assistant attorney general who signed the advisory. Davis alleged that the
assistant attorney general made “false and untrue statements” in the advisory. First,
Rule 13 does not state that an evidentiary hearing is required to deny a Rule 13
motion. See Skinner v. Levine, No. 04-03-00354-CV, 2005 WL 541341, at *3 (Tex.
                                            5
App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.). Second, based on a review
of the amicus curiae advisory, we hold that the trial court acted within its discretion
in this case to deny Davis’s motion. See TEX. R. CIV. P. 13. We overrule Davis’s
second issue.
        We affirm the judgment of the trial court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


September 20, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals4;
and Wright, S.C.J.5

Willson, J., not participating.




        4
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        5
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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