                             NUMBER 13-17-000416-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

FRED HOFFMAN III #1662898,                                               Appellant,

                                             v.

SGT. J. MURO AND LT. C. GARCIA,                                          Appellees.


                    On appeal from the 156th District Court
                           of Bee County, Texas.


                          MEMORANDUM OPINION
             Before Justices Contreras, Longoria, and Hinojosa
                Memorandum Opinion by Justice Contreras
       Appellant Fred Hoffman III, pro se, sued appellees Javier Muro and Christie

Garcia, correctional officers at the Texas Department of Criminal Justice (TDCJ)

McConnell Unit in Beeville, Texas. By five issues on appeal, Hoffman contends that the

trial court erred in dismissing his suit. We affirm.
                                              I. BACKGROUND

       Hoffman, an inmate at the McConnell Unit, alleged in his original petition that Muro

assaulted him on July 5, 2016 by handcuffing him behind his back and having a barber

“forcibly cut off” his beard, which he wears for religious reasons. He contended that Muro

retaliated against him because he had filed grievances against Muro in the past. Hoffman

further alleged that Garcia was assigned to investigate the Step 1 grievance that he filed

after the July 5 incident, but that she “ignored” his claims.

       In an amicus curiae advisory ordered by the trial court, the Office of the Attorney

General (OAG) argued in response that (1) Hoffman failed to exhaust his administrative

remedies with respect to Garcia because his Step 2 grievance did not mention that officer,

and (2) all of Hoffman’s claims are frivolous or malicious and should thus be dismissed

under chapter 14 of the Texas Civil Practice and Remedies Code.

       Without holding a hearing, the trial court rendered a final judgment dismissing

Hoffman’s suit with prejudice, citing both grounds raised in the OAG’s advisory. The

judgment additionally stated in handwriting that “[t]he Court finds the Plaintiff is not

indigent.” This appeal followed.1

                                               II. DISCUSSION

       Hoffman argues on appeal that: (1) the trial court abused its discretion in finding

that his assault claim is not “cognizable”; (2) the trial court abused its discretion in finding

that his retaliation claim is not “cognizable”; (3) the trial court abused its discretion in

finding that he is not indigent; (4) the trial court should not have “converted” the OAG’s




       1   No appellees’ brief or amicus curiae brief has been filed in this appeal.

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amicus curiae advisory into a “summary judgment”; and (5) his factual allegations “raise

a material issue [of fact] under the Eighth Amendment.”

A.     Standard of Review and Applicable Law

       Chapter 14 of the Texas Civil Practice and Remedies Code governs suits, such as

this one, brought by an inmate who has filed an affidavit or unsworn declaration of inability

to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West, Westlaw through

2017 1st C.S.). In such a case, the trial court may dismiss a claim at any time upon

finding that the claim is frivolous or malicious. Id. § 14.003(a)(2) (West, Westlaw through

2017 1st C.S.). 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.               Id.

§ 14.003(b).

       The trial court has broad discretion to dismiss an inmate’s claim as frivolous.

Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.—Corpus Christi 2002, no pet).

Generally, we review a dismissal under chapter 14 for an abuse of discretion. In re

Douglas, 333 S.W.3d 273, 293 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

However, when a trial court dismisses a claim as frivolous without a hearing, as here, the

issue on appeal is limited to whether the claim had no arguable basis in law. Moreland

v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). This is

a legal issue which we review de novo. Id.




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       In our review of whether a claim has an arguable basis in law, we take the inmate’s

allegations as true and determine “whether, as a matter of law, the petition stated a cause

of action that would authorize relief.” Brewer v. Simental, 268 S.W.3d 763, 770 (Tex.

App.—Waco 2008, no pet.). A claim has no arguable basis in law if it is based on (1)

wholly incredible or irrational factual allegations, or (2) an indisputably meritless legal

theory. Nabelek v. Dist. Att’y of Harris Cty., 290 S.W.3d 222, 228 (Tex. App.—Houston

[14th Dist.] 2005, pet. denied).

B.     Analysis

       A claim has no arguable basis in law if the inmate has failed to exhaust his

administrative remedies. Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort

Worth 2008, no pet.). Section 501.008 of the Texas Government Code establishes a

statutory requirement that inmate grievance procedures be exhausted against all named

parties before suit is initiated.   TEX. GOV’T CODE ANN. § 501.008(d) (West, Westlaw

through 2017 1st C.S.). An inmate has not exhausted these grievance procedures for

any individuals named in his petition who were not named in his grievance.            See

Leachman, 261 S.W.3d at 311 (holding that, to satisfy the exhaustion requirement, an

inmate must file both a Step 1 and a Step 2 grievance against each defendant); see also

Catland v. Blackwell, No. 13-16-00567-CV, 2017 WL 3725725, at *2 (Tex. App.—Corpus

Christi Aug. 30, 2017, no pet.) (mem. op.) (same). Here, Hoffman failed to exhaust his

administrative remedies as to Garcia because he filed neither a Step 1 nor a Step 2

grievance naming her. The trial court did not err by dismissing Hoffman’s claims against

Garcia on these grounds.

       The Texas Tort Claims Act (TTCA) provides:



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        If 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 considered to be against the employee in the employee’s official
        capacity only. On the employee’s motion, the suit against the employee
        shall be dismissed unless the plaintiff files amended pleadings dismissing
        the employee and naming the governmental unit as defendant on or before
        the 30th day after the date the motion is filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through 2017 1st C.S.).

The claims set forth in Hoffman’s petition, taken as true, are based only on the conduct

of Muro and Garcia that was within the general scope of their employment with TDCJ.

See id. Further, his claims “could have been brought under [the TTCA] against” TDCJ.

See Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011); Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (“Because the [TTCA] is the only, albeit

limited, avenue for common-law recovery against the government, all tort theories alleged

against a governmental unit, whether it is sued alone or together with its employees, are

assumed to be ‘under [the TTCA]’ for purposes of section 101.106.”). Accordingly, upon

motion filed by either appellee, the trial court would be required to dismiss Hoffman’s suit,

unless he filed amended pleadings dismissing appellees as parties. See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.106(f).                Either way, due to application of TTCA section

101.106(f), Hoffman’s claims as to both appellees had no arguable basis in law. See id.

§ 14.003(b)(2). Therefore, the trial court did not err in dismissing those claims as frivolous

or malicious.

        We overrule Hoffman’s first, second, fourth, and fifth issues.2


        2Hoffman argues by his third issue that the trial court erred in finding him not indigent. However,
he does not support his third issue with any references to authority. See TEX. R. APP. P. 38.1(i).
Accordingly, the issue is waived.
        We note that the trial court did not dismiss Hoffman’s suit on grounds that his declaration of inability
to pay costs was false. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1), (3) (West, Westlaw through

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                                               III. CONCLUSION

        The trial court’s judgment is affirmed.

                                                                      DORI CONTRERAS
                                                                      Justice


Delivered and filed the
14th day of June, 2018.




2017 1st C.S.) (authorizing the trial court to dismiss an inmate’s claim if the declaration of inability to pay
costs is false). In such circumstances, a finding of non-indigence is harmless to the appellant because any
inmate filing suit along with an affidavit or declaration of inability to pay costs may be required to pay in trust
account draws pursuant to section 14.006, regardless of whether the inmate is later found to be non-
indigent. See id. § 14.006 (West, Westlaw through 2017 1st C.S.); see also Leachman v. Stephens, No.
02-13-00357-CV, 2016 WL 6648747, at *14 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.)
(“Chapter 14 provides a vehicle for drawing money out of an inmate’s trust account when the inmate files
an unsworn declaration of inability to pay costs. . . . The triggering mechanism is the filing of an affidavit or
an unsworn declaration, not the ‘finding’ of any indigence . . . . [B]ecause the trial court did not dismiss
Appellant’s suit pursuant to section 14.003, we hold that the finding that Appellant was not indigent is
harmless.”).

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