                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                 NO. 2-09-115-CV


JIM H. HAMILTON, JR.                                                   APPELLANT

                                         V.

EMIL J. PECHACEK                                                         APPELLEE

                                     ------------

           FROM THE 30TH DISTRICT COURT OF W ICHITA COUNTY

                                     ------------

                                    OPINION

                                     ------------

                                  I. INTRODUCTION

        Appellant Jim H. Hamilton, Jr., an inmate proceeding pro se and in forma

pauperis, challenges the trial court’s order dismissing his lawsuit against Appellee

Emil J. Pechacek. In five points, Hamilton asserts that the trial court erred by

dismissing his suit with prejudice under chapter 14 of the Texas Civil Practice and

Remedies Code without conducting a hearing on Pechacek’s motion to dismiss or

on Hamilton’s motion for new trial. W e will affirm in part and reverse and remand in

part.
                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Hamilton is an inmate housed in the Texas Department of Criminal Justice’s

(TDCJ) James Allred unit in W ichita County, Texas. Pechacek is an employee of

the TDCJ and a correctional officer at the Allred unit. Hamilton alleges that on

January 9, 2008, Pechacek caused a cup of hot coffee to be spilled on him and his

personal property.    Hamilton specifically alleges that Pechacek intentionally or

negligently grabbed a coat that had legal papers and a cup of “extremely hot” coffee

on top of it, threw the coat, and thus caused the cup of coffee “to make contact

with . . . Hamilton’s chest and stomach area” and his legal papers. Hamilton further

alleges that Pechacek’s actions caused first-degree burns on Hamilton’s chest and

stomach and the destruction of legal papers valued at $166.

      Hamilton filed a TDCJ grievance against Pechacek, which was denied.

Hamilton then filed suit against Pechacek in district court claiming that Pechacek

assaulted him and violated his rights under the Texas constitution, Texas Penal

Code, Texas Government Code, and TDCJ’s rules, policies, and procedures.

Hamilton also requested an eight-point injunction prohibiting Pechacek from

assaulting him or otherwise violating his rights. 1 Although Hamilton’s original petition

does not expressly allege violations of Hamilton’s rights under the United States




      1
        Hamilton’s original petition also brings a claim for intentional infliction of
emotional distress, but in briefing before the trial court Hamilton, specifically
represented that he had “abandon[ed]” this claim.

                                           2
Constitution, it may be liberally construed as asserting violations of his federal rights

under 42 U.S.C. § 1983. 2

      Pechacek answered and moved to dismiss Hamilton’s lawsuit under chapter

14 of the Texas Civil Practice and Remedies Code. Chapter 14 sets out special

procedural rules that apply to an inmate lawsuit in which the inmate files an affidavit

or unsworn declaration of inability to pay costs, except for suits brought under the

family code. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002).

Pechacek specifically asserted that the majority of Hamilton’s claims should be

dismissed as frivolous and that all of his claims should be dismissed because

Hamilton did not comply with chapter 14’s requirement that he file a copy of the

TDCJ’s written grievance decision.

      Hamilton filed a verified objection to Pechacek’s motion to dismiss and a

“Motion for Bench W arrant or In the Alternative Motion for Hearing by Conference

Call.” The trial court set Pechacek’s motion to dismiss for hearing by submission

only and ultimately granted the motion without conducting an oral or evidentiary

hearing. The trial court entered a final judgment dismissing all of Hamilton’s claims

“on the merits” as frivolous for failure to comply with chapter 14 of the Texas Civil

Practice and Remedies Code. Hamilton filed a motion for new trial. The trial court

      2
        Pechacek appears in this court pro se. Accordingly, we liberally construe
his arguments and attempt to address the legal and factual arguments he makes.
See, e.g., Tex. R. App. P. 38.9; McCullough v. Tex. Dep’t of Criminal Justice-ID, No.
02-07-00072-CV, 2008 W L 704419, at *2 n.6 (Tex. App.—Fort W orth Mar. 13, 2008,
no pet.) (mem. op.).

                                           3
denied the motion for new trial without conducting an evidentiary hearing, and this

appeal followed.

                             III. M OTION FOR N EW T RIAL

      In his first point, Hamilton argues that the trial court erred by failing to conduct

an evidentiary hearing on his motion for new trial because his verified motion raises

controverted matters that are not determinable from the record.

      W e review a trial court’s denial of a motion for new trial for an abuse of

discretion.   See Cliff v. Huggins, 724 S.W .2d 778, 778–79 (Tex. 1987).               To

determine whether a trial court abused its discretion, we must decide whether the

trial court acted without reference to any guiding rules or principles; in other words,

we must decide whether the act was arbitrary or unreasonable. Cire v. Cummings,

134 S.W .3d 835, 838–39 (Tex. 2004).

      W hether to hold an evidentiary hearing on a motion for new trial in a civil

matter is within the trial court’s discretion unless the ground for the motion is jury

misconduct. See Hamilton v. Williams, 298 S.W .3d 334, 339 (Tex. App.—Fort

W orth 2009, no pet.); Parham v. Wilbon, 746 S.W .2d 347, 351 (Tex. App.—Fort

W orth 1988, no writ); see also Tex. R. Civ. P. 327 (providing that, when the ground

of a motion for new trial, supported by affidavit, is misconduct of the jury, “the court

shall hear evidence thereof from the jury or others in open court”).

      In this case, the allegation of jury misconduct does not apply because no jury

trial was held. Moreover, even if we were to adopt the standard applied by other


                                           4
courts of appeals—that a trial court must hold a hearing on a motion for new trial if

the motion “presents a question of fact upon which evidence must be heard” and

alleges facts that, if true, would entitle the movant to a new trial—Hamilton would not

be entitled to an evidentiary hearing on his motion for new trial because it failed to

identify any question of fact upon which additional evidence was required or to

specify what evidence, if any, he would have presented to the trial court had an

evidentiary hearing been held. See, e.g., Landis v. Landis, No. 04-08-00858-CV,

2009 W L 4339055, at *1 (Tex. App.—San Antonio Dec. 2, 2009, no pet.) (“A trial

court is only required to conduct a hearing on a motion for new trial when a motion

presents a question of fact upon which evidence must be heard.”). Accordingly, the

trial court did not abuse its discretion by failing to conduct an evidentiary hearing on

Hamilton’s motion for new trial. W e overrule Hamilton’s first point. 3

       IV. R IGHT TO ATTEND A H EARING ON A C HAPTER 14 M OTION TO D ISMISS

      In his third point, Hamilton argues that the trial court erred by denying his

constitutional right to be heard on Pechacek’s chapter 14 motion to dismiss because

the court failed to consider and rule upon his motion for a bench warrant to

personally appear at a hearing or, in the alternative, to participate by conference call.

      3
         Hamilton’s contention—that his motion for new trial raises matters “not
determinable from the record”—apparently relies upon the criminal standard for
requiring an evidentiary hearing on a motion for new trial: “Generally, a trial court
should hold a hearing if the motion and attached affidavit raise matters that are not
determinable from the record that could entitle the accused to relief.” Rozell v. State,
176 S.W .3d 228, 230 (Tex. Crim. App. 2005). Because this is not a criminal matter,
we do not apply the criminal standard here.

                                            5
The trial court did not conduct an oral or evidentiary hearing but heard Pechacek’s

motion to dismiss by submission only.

      A.     Standard of Review

      W e review for an abuse of discretion a trial court’s ruling on a request for a

bench warrant or to participate at trial by other means. In re Z.L.T., 124 S.W .3d 163,

165 (Tex. 2003); In re D.D.J., 136 S.W .3d 305, 311–14 (Tex. App.—Fort W orth

2004, no pet.). To determine whether a trial court abused its discretion, we must

decide whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable.     Cire, 134 S.W .3d 835 at 838–39.         W hen reviewing matters

committed to the trial court’s discretion, we may not substitute our own judgment for

that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W .3d 48, 52 (Tex. 2002).

      B.     Bench Warrant or Appearance at Hearing by Conference Call

      Litigants cannot be denied access to the courts simply because they are

inmates. Z.L.T., 124 S.W .3d at 165; Ringer v. Kimball, 274 S.W .3d 865, 867 (Tex.

App.—Fort Worth 2008, no pet.). However, an inmate does not have an automatic

right to appear in person in every court proceeding. Z.L.T., 124 S.W .3d at 165;

D.D.J., 136 S.W .3d at 311. “The right of a prisoner to have access to the courts

entails not so much his personal presence as the opportunity to present evidence

or contradict the evidence of the opposing party.” D.D.J., 136 S.W .3d at 314.




                                          6
      In this case, the trial court heard Pechacek’s motion to dismiss by submission

only, implicitly denying Hamilton’s request for a bench warrant or, alternatively, to

appear at hearing by conference call. Section 14.003(c) of the civil practice and

remedies code provides that a hearing on a chapter 14 motion to dismiss is not

mandatary, stating:

      In determining whether [to dismiss a suit under section 14.003], the
      court may hold a hearing. The hearing may be held before or after
      service of process, and it may be held on motion of the court, a party,
      or the clerk of the court.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002) (emphasis added).

The plain language of the statute indicates that the trial court’s determination to hold

a hearing on a chapter 14 motion to dismiss is discretionary. See id. Thus, an

inmate bringing a claim subject to chapter 14 has no right to be heard at a hearing

upon a motion to dismiss his or her claims. See Thomas v. Wichita Gen. Hosp., 952

S.W .2d 936, 938 (Tex. App.—Fort W orth 1997, pet. denied) (holding that a trial

court’s determination whether to hold a hearing on a chapter 14 motion to dismiss

is discretionary).

      Based on section 14.003(c), it was within the trial court’s discretion to hear

Pechacek’s motion to dismiss by submission only, without conducting an oral or

evidentiary hearing. 4 Hamilton had the opportunity to oppose Pechacek’s motion to

      4
         Hamilton also argues that the trial court erred by violating W ichita County
Local Rule 2.7.c.2, which requires in part that, “if the Court receives a written
objection [to a proposed judgment, decree, or order] within [ten days], the proponent
of the judgment, decree or order shall schedule a hearing for entry of the same.”

                                           7
dismiss and did so by filing verified objections. Moreover, Hamilton does not identify

any evidence or argument that he contends he would have presented at the hearing

but could not. Hamilton had no need to attend a hearing to present evidence or

contradict the evidence of the opposing party because no evidentiary hearing was

held. See D.D.J., 136 S.W .3d at 314. Accordingly, we hold that the trial court did

not abuse its discretion by failing to conduct an evidentiary hearing or by implicitly

denying Hamilton’s request to appear at any hearing personally or by conference

call. W e overrule Hamilton’s third point.

            V. D ISMISSAL P URSUANT TO C HAPTER 14 OF THE T EXAS C IVIL
                          P RACTICE AND R EMEDIES C ODE

      In his second, fourth, and fifth points, Hamilton complains that the trial court

erred by granting Pechacek’s motion to dismiss his claims and his request for

injunctive relief as frivolous under chapter 14 and by dismissing them “on the merits.”

For the reasons set forth below, we will sustain the portions of Hamilton’s second,

fourth, and fifth points that challenge the dismissal of his common law assault and

battery and personal property claims, his section 1983 excessive force claim against

Pechacek individually, and the dismissal with prejudice of his section 1983 access

to courts claim; we will overrule the balance of Hamilton’s second, fourth, and fifth

points.




However, the trial court did not fail to schedule a hearing; on July 21, 2008, it signed
an “Order Setting Hearing” by submission only.

                                             8
       A.     Dismissal Under Chapter 14

       The legislature enacted chapter 14 of the Texas Civil Practice and Remedies

Code to control the flood of frivolous lawsuits being filed in Texas courts by prison

inmates because these suits consume many valuable judicial resources with little

offsetting benefits. Bishop v. Lawson, 131 S.W .3d 571, 574 (Tex. App.—Fort W orth

2004, pet. denied); Thomas v. Knight, 52 S.W .3d 292, 294 (Tex. App.—Corpus

Christi 2001, pet. denied), cert. denied, 537 U.S. 890 (2002). Chapter 14 sets forth

procedural requirements an inmate must satisfy as a prerequisite to filing suit. Tex.

Civ. Prac. & Rem. Code Ann. §§ 14.002, 14.004–.006; see also Lilly v. Northrep,

100 S.W .3d 335, 336 (Tex. App.—San Antonio 2002, pet. denied). Among other

requirements, an inmate must file an affidavit or unsworn declaration stating the date

that the grievance underlying the lawsuit was filed and the date of the TDCJ’s written

decision, along with “a copy of the written decision from the grievance system.” Tex.

Civ. Prac. & Rem. Code Ann. § 14.005(a)(1)–(2). Should the inmate fail to comply

with these requirements, his suit will be dismissed. Lilly, 100 S.W .3d at 336.

       Even if an inmate satisfies the necessary filing requirements, however, the trial

court may dismiss an inmate’s claim if it finds the claim to be frivolous or malicious.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003; Comeaux v. Tex. Dep’t of Criminal

Justice, 193 S.W .3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A

claim is frivolous or malicious if it has no basis in law or fact or if its realistic chance

of ultimate success is slight. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1)–(2).


                                             9
      B.     Standard of Review

      W e review a dismissal under chapter 14 for an abuse of discretion. Bishop,

131 S.W .3d at 574. W hen, as in this case, an inmate’s lawsuit is dismissed as

frivolous for having no basis in law or in fact but no fact hearing is held, our review

focuses on whether the inmate’s lawsuit has an arguable basis in law. See Scott v.

Gallagher, 209 S.W .3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

W hile a chapter 14 dismissal is reviewed under an abuse of discretion, the issue as

to whether a claim has an arguable basis in law is a legal question that we review

de novo.    See In re Humphreys, 880 S.W .2d 402, 404 (Tex.) (op. on reh’g)

(explaining that questions of law are reviewed de novo), cert. denied, 513 U.S. 964

(1994). W e will affirm the dismissal if it was proper under any legal theory. Johnson

v. Lynaugh, 796 S.W .2d 705, 706–07 (Tex. 1990).

      In conducting our review, we take as true the factual allegations in an inmate’s

petition and review the types of relief and causes of action set out therein to

determine whether, as a matter of law, the petition stated a cause of action that

would authorize relief. See Scott, 209 S.W .3d at 266. A claim has no arguable

basis in law if it relies upon an indisputably meritless legal theory. Id. at 266–67.

      Here, the trial court dismissed Hamilton’s claims “on the merits” or with

prejudice. A dismissal with prejudice operates as if the case had been fully tried and

decided. See Ritchey v. Vasquez, 986 S.W .2d 611, 612 (Tex. 1999). Orders

dismissing cases with prejudice have full res judicata and collateral estoppel effect,


                                          10
barring subsequent relitigation of the same causes of action or issues between the

same parties. See Barr v. Resolution Trust Corp., 837 S.W .2d 627, 630–31 (Tex.

1992). W hen reviewing whether the trial court abused its discretion by dismissing

claims with prejudice under chapter 14, this court should consider whether the

inmate’s error could be remedied with more specific pleading; if so, a dismissal

under chapter 14 with prejudice is improper. See Leachman v. Dretke, 261 S.W .3d

297, 306 (Tex. App.—Fort W orth, 2008 no pet.) (op. on reh’g).

      C.     Dismissal of Hamilton’s Claims Under Section 14.005

      In his second point, Hamilton contends that the trial court erred by dismissing

his claims for failure to comply with section 14.005 of the civil practice and remedies

code. Specifically, Hamilton argues that the trial court erred by dismissing his claims

under section 14.005 based upon the incorrect assumption that he failed to file a

copy of the TDCJ’s written response to his underlying grievance. See Tex. Civ.

Prac. & Rem. Code Ann. § 14.005(a)(2) (requiring inmate to file “a copy of the

written decision from the grievance system”).

      A review of the record shows that Hamilton indeed filed the TDCJ’s written

Step I and Step II decisions in the grievance relevant to this lawsuit. Moreover, in

his briefing before this court, Pechacek acknowledges that Hamilton filed the written

Step I and Step II grievance decisions and concedes that Hamilton’s claims are not

properly subject to dismissal for failure to comply with section 14.005. Accordingly,

we hold that the trial court abused its discretion to the extent that it dismissed


                                          11
Hamilton’s claims as frivolous for alleged failure to comply with section 14.005, and

we sustain Hamilton’s second point. 5

       D.    Dismissal of Hamilton’s Claims Under Section 14.003(a)(2)

       In his fourth point, Hamilton argues that the trial court erred by dismissing his

claims as frivolous under section 14.003(a)(2) because they lacked an arguable

basis in law or their realistic chance of ultimate success was slight. In response,

Pechacek concedes that Hamilton’s common law assault and battery and section

1983 excessive force claims are not frivolous and not subject to dismissal at this

time but argues that Hamilton’s remaining claims are subject to dismissal as

frivolous.

             1.     Hamilton’s Assault and Battery Claim

       Hamilton brings a common law assault and battery claim.             On appeal,

Pechacek acknowledges that this claim is not frivolous, “not subject to dismissal as

lacking basis in law,” and “not presently ripe for dismissal with prejudice under

§ 14.003(a)(2).” In addition, Pechacek requests that we remand Hamilton’s common

law assault and battery claim to the trial court for further proceedings. W e agree.




       5
        Because we sustain Hamilton’s second point on the ground that he
complied with section 14.005, we do not address, and express no opinion regarding,
Hamilton’s alternative argument that dismissal based on failure to comply with
section 14.005 is not authorized because “the prerequisites of § 14.005 are not
mandatory, but merely are directory.”

                                          12
      A person commits an assault by intentionally, knowingly, or recklessly causing

bodily injury to another. Gibbins v. Berlin, 162 S.W .3d 335, 340 (Tex. App.—Fort

W orth 2005, no pet.). In his original petition, Hamilton specifically alleges that

Pechacek intentionally threw “extremely hot” coffee on him and knew or should have

known that his actions would “recklessly cause first degree burns.” Accordingly, we

hold that Hamilton’s assault and battery claim does not lack an arguable basis in law

and that the trial court abused its discretion by dismissing this claim with prejudice.

             2.     Hamilton’s 42 U.S.C. § 1983 Excessive Force Claims

      Hamilton’s petition brings suit against Pechacek “individually and in his official

capacity” and alleges that Pechacek’s actions constituted “excessive use of force”

committed “intentionally, . . . knowingly,” “arbitrar[ily], wantonly, and in bad faith.”

Accordingly, the petition may be read to include an Eighth Amendment excessive

force claim under section 1983. 6 As with Hamilton’s assault and battery claim,

Pechacek admits on appeal that this claim is not frivolous, “not subject to dismissal

as lacking basis in law,” and “not presently ripe for dismissal with prejudice under

§ 14.003(a)(2).”   Pechacek requests that we remand Hamilton’s section 1983

excessive force claim to the trial court for further proceedings.

      Section 1983 creates a private right of action for violations of an individual’s

federally guaranteed rights by those acting under color of state law. 42 U.S.C.A. §

      6
        Pechacek states on appeal that, “[a]lthough no mention of the Eighth
Amendment or excessive force are made, Hamilton’s petition may be liberally
construed to include an excessive force claim brought under 42 U.S.C. § 1983.”

                                          13
1983 (2003); Richardson v. McKnight, 521 U.S. 399, 403, 117 S. Ct. 2100, 2103

(1997). But Congress did not intend section 1983 to abrogate a state’s sovereign

immunity from suit without the state’s consent. Will v. Mich. Dep't of State Police,

491 U.S. 58, 64–66, 109 S. Ct. 2304, 2308–09 (1989) (holding that “a State is not

a person within the meaning of § 1983”). Therefore, a state is not a proper party to

a section 1983 claim. See Harrison v. Tex. Dept. of Criminal Justice-Institutional

Div., 915 S.W .2d 882, 889 (Tex. App.—Houston [1st Dist.] 1995, no pet.). W hen

sued under section 1983 in an official capacity, a suit against a TDCJ official is a suit

against the State of Texas and is thus barred by sovereign immunity. See Tex. Dep't

of Pub. Safety v. Petta, 44 S.W .3d 575, 581 (Tex. 2001). Accordingly, we hold that

the trial court did not abuse its discretion by dismissing with prejudice Hamilton’s

section 1983 claim against Pechacek to the extent that he was sued in his official

capacity.

       State officials sued in their individual capacity, however, do not enjoy

sovereign immunity from suit and may be sued under section 1983. See, e.g.,

Hidalgo County v. Gonzalez, 128 S.W .3d 788, 792–93 (Tex. App.—Corpus Christi

2004, no pet.). W hen an inmate brings an excessive force section 1983 claim

against a prison official individually, “the core judicial inquiry is . . . whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998)

(quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992)). Hamilton’s


                                             14
original petition alleges that Pechacek used excessive force by intentionally,

knowingly, arbitrarily, wantonly, and in bad faith causing extremely hot coffee to be

spilled on Hamilton’s body. On appeal, Hamilton specifically argues that Pechacek’s

actions were in bad faith and “not sanctioned by any established state policy,” as

demonstrated by the fact that they allegedly violated established TDCJ rules,

policies, and procedures. 7 Accordingly, Hamilton has alleged facts to support a

section 1983 excessive force claim against Pechacek individually.           W e hold,

therefore, that this claim is not frivolous as a matter of law and that the trial court

abused its discretion to the extent it dismissed Hamilton’s section 1983 excessive

force claim against Pechacek individually.

             3.     Hamilton’s Claim Based Solely Upon the Texas Constitution

      Hamilton argues that the trial court erred by dismissing his claim based on

Texas constitutional violations because it is not based solely on Texas constitutional

violations but on common law assault and battery and section 1983 excessive force

      7
         Hamilton’s appellate brief seems to argue that his allegations that
Pechacek acted in violation of TDCJ rules, policies, and procedures support his
common law assault and battery and constitutional excessive force claims and do
not, by themselves, constitute a separate cause of action. Hamilton failed to raise
or brief any point challenging the trial court’s dismissal of any claim he may have
brought based solely on Pechacek’s alleged violation of TDCJ rules, policies, or
procedures. Therefore, for purposes of this appeal, any alleged error by the trial
court in dismissing such claims is waived. See Tex. R. App. P. 38.1(e), (h); Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W .2d 279, 284–85 (Tex. 1994)
(discussing the “long-standing rule” that an appellate point may be waived due to
inadequate briefing); Leachman, 261 S.W .3d at 305 n.3 (holding that inmate waived
challenge regarding constitutional claims because he failed to raise or brief them on
appeal).

                                          15
claims as well. Hamilton also contends that his allegations of Texas constitutional

violations support declaratory and injunctive relief, not his request for damages.

      Hamilton’s original petition seeks damages based on Texas constitutional

violations, brings suit against Pechacek to “redress the deprivation under color of

state law of rights secured by the constitution of the State of Texas,” and requests

compensatory and punitive damages. Under the Texas Supreme Court’s decision

in City of Beaumont v. Bouillion and its progeny, however, no private cause of action

exists against a governmental entity or its officials for money damages relating to

alleged violations of Texas constitutional rights. See City of Arlington v. Randall, No.

02-08-00374-CV, 2009 W L 4757272, at *6 (Tex. App.—Fort W orth Dec. 10, 2009,

pet. filed) (citing City of Beaumont v. Bouillion, 896 S.W .2d 143, 147 (Tex. 1995),

and holding that there is no private right of action for damages arising from

unconstitutional conduct under Texas constitution’s free speech and free assembly

clauses); Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W .3d 410, 425 (Tex.

App.—Houston [14th Dist.] 2002, pet. denied) (op. on reh’g) (holding Bouillion

applies to bar private right of action for damages arising from other alleged Texas

constitutional violations); Univ. of Tex. Sys. v. Courtney, 946 S.W .2d 464, 468–69,

471 (Tex. App.—Fort W orth 1997, writ denied) (op. on reh’g) (holding Bouillion

applies to alleged Texas constitutional due process provision violations by individual

public officials and governmental entities). Accordingly, we hold that, to the extent

Hamilton’s claims for damages are based solely on alleged violations of his Texas


                                          16
constitutional rights, they are frivolous as lacking an arguable basis in law. 8

Moreover, because this claim relies upon an indisputably meritless legal theory,

Hamilton cannot remedy this deficiency by amending his pleading. W e therefore

hold that the trial court did not abuse its discretion by dismissing this claim with

prejudice.

             4.    Hamilton’s Claims Based Upon Alleged Violations of the
                   Texas Penal Code

      Hamilton contends that the trial court erred by dismissing his claims based

upon Pechacek’s alleged violations of Texas Penal Code sections 22.01 (assault)

and 39.03 (official oppression). But the Texas Penal Code does not create a private

cause of action. Brown v. De La Cruz, 156 S.W .3d 560, 567 (Tex. 2004); Spurlock

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

Accordingly, we hold that to the extent Hamilton brings claims based on Pechacek’s

alleged assault and official oppression as violations of the penal code, they are

frivolous as lacking arguable bases in law. Moreover, the claim relies upon an

indisputably meritless legal theory, and Hamilton cannot remedy this deficiency by




      8
        Hamilton’s original petition also seeks declaratory judgment based on
alleged violations of his rights under the Texas constitution. Hamilton failed,
however, to raise or brief any point challenging the trial court’s dismissal of his
declaratory judgment action. Therefore, for purposes of this appeal, any alleged
error by the trial court is waived. See Tex. R. App. P. 38.1(e), (h); Fredonia State
Bank, 881 S.W .2d at 284–85; Leachman, 261 S.W .3d at 305 n.3.

                                        17
amending his pleadings.         Thus, we hold that the trial court did not abuse its

discretion by dismissing these claims with prejudice.

                 5.    Hamilton’s Claims Based Upon Alleged Violations of the
                       Texas Government Code

           Hamilton contends the trial court erred by dismissing his claims based upon

Pechacek’s alleged violations of Texas Government Code sections 501.007 and

501.008.       These sections authorize discretionary payments to inmates for the

destruction of their property by prison officials (501.007) and require the TDCJ to

develop and maintain an administrative system for inmate grievances (501.008).

See Tex. Gov’t Code Ann. §§ 501.007–.008 (Vernon 2004). In addition, section

501.008(d) requires that inmates exhaust the government code grievance

procedures before initiating a civil suit seeking damages for property destruction.

Id. § 501.008; see Spurlock v. Schroedter, 88 S.W .3d 733, 737 (Tex. App.—Corpus

Christi 2002, no pet.) (“Clearly, the legislature foresaw that inmates would seek

redress in the courts [for destruction to personal property] because section

501.008(d) is the requirement to exhaust the grievance procedures before initiating

suit.”).     These sections of the government code do not, however, provide an

independent basis for an inmate’s civil lawsuit. See, e.g., Spurlock, 88 S.W .3d at

737. W e hold that Hamilton’s claims are frivolous because they have no arguable

basis in law to the extent that they are based solely on Pechacek’s alleged

government code violations. Moreover, any such claims rely upon an indisputably



                                            18
meritless legal theory, and Hamilton cannot remedy the deficiency by amending his

pleadings.   Accordingly, we further hold that the trial court did not abuse its

discretion by dismissing any such claim with prejudice.

             6.     Hamilton’s Common Law Property Claims

      Hamilton seeks damages based upon Pechacek’s alleged destruction of “$166

worth of legal documents generated from a pending suit against Asst. W arden

Tommy Norwood.”        In his original petition, Hamilton specifically alleges that

Pechacek intentionally caused coffee to be spilled and knew or should have known

that the documents would be destroyed as a result; in the alternative, Hamilton

alleges that Pechacek’s actions “constituted negligence and gross negligence under

state law.” Pechacek counters that the law does not recognize an inmate’s claim of

negligent or intentional deprivation of property by a public official.

      Texas common law recognizes claims of intentional and negligent destruction

of personal property. See Johnson v. Brewer & Pritchard, P.C., 73 S.W .3d 193, 211

n.44 (Tex. 2002) (defining common law conversion as “the wrongful exercise of

dominion and control over another’s property in denial of or inconsistent with his

rights”); Kelly v. Brown, 260 S.W .3d 212, 218 (Tex. App.—Dallas 2008, pet. denied)

(recognizing personal injury and property damages recoverable under common law

negligence claim). In addition, an inmate may bring suit asserting a common law

claim for negligent, intentional, or reckless destruction of personal property if the




                                          19
TDCJ’s administrative grievance procedures have been exhausted. See Spurlock,

88 S.W .3d at 737; see also Tex. Gov’t Code Ann. § 501.008.

      Hamilton’s original petition brings a negligence claim seeking damages for the

destruction of his personal property.       Moreover, his petition may be liberally

construed to include a common law conversion claim as well. And Hamilton alleges

that he has exhausted all TDCJ administrative grievance procedures that are

required as a condition of his ability to bring suit. Accordingly, we hold that the trial

court could not have properly concluded that Hamilton’s common law property claims

lack an arguable basis in law and that, consequently, the trial court abused its

discretion by dismissing these claims.

             7.     Hamilton’s Section 1983 Claims Relating to the Intentional
                    Destruction of Personal Property

      In his motion for new trial, Hamilton asserts that his claim of intentional

destruction of property arises under 42 U.S.C. § 1983. 9 The Due Process Clause

of the Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty or property without due process of law.” U.S. Const. amend. XIV. However,

a state prison official’s unauthorized intentional act that deprives an inmate of

property is not a constitutional violation if there exists an adequate post-deprivation

remedy. Hudson v. Palmer, 468 U.S. 517, 535, 104 S. Ct. 3194, 3204–05 (1984).



      9
         Although asserting a claim for intentional destruction of his property,
Hamilton acknowledges in briefing before the trial court that “no section 1983 claim
exists for negligent damage to property.” [Emphasis added.]

                                           20
The Texas Legislature has provided an administrative remedy to compensate

inmates for property lost or damaged by prison officials. See Tex. Gov’t Code Ann.

§§ 501.007–.008 (addressing compensation process for inmate claims of lost or

damaged property and establishing an inmate grievance system). Because they

have an adequate post-deprivation remedy, inmates in Texas have no arguable

basis in law for asserting a section 1983 due process claim for the intentional

destruction of their property by a prison official. Spurlock, 88 S.W .3d at 736-37;

Aguilar v. Chastain, 923 S.W .2d 740, 744 (Tex. App.—Tyler 1996, writ denied).

Accordingly, there is no arguable basis in law for Hamilton’s section 1983 claim

based on violation of his due process rights due to Pechacek’s alleged intentional

destruction of his legal documents, and Hamilton cannot remedy this claim’s

deficiencies by amending his pleadings. W e hold, therefore, that the trial court did

not err by dismissing this claim with prejudice under chapter 14.

      Hamilton also alleges that the destroyed documents related to pending

litigation against Assistant W arden Tommy Norwood.         His petition, therefore,

arguably may be construed to include an access to courts claim under 42 U.S.C.

§ 1983. To sustain a constitutional claim for denial of access to the courts, an

inmate must show “actual injury” to a legal claim by demonstrating that his or her

position as a litigant has been prejudiced by the defendant’s actions. McDonald v.

Steward, 132 F.3d 225, 230–31 (5th Cir. 1998); see Lewis v. Casey, 518 U.S. 343,

349–51, 116 S. Ct. 2174, 2179–80 (1996).


                                         21
       In this case, Hamilton’s original petition makes no factual allegations regarding

the impact, if any, that the alleged destruction of his legal documents has on his

position as a litigant in this or any other litigation. Hamilton cannot, therefore, prevail

on a section 1983 access to courts claim because he has not alleged actual injury.

See McDonald, 132 F.3d at 230–31. W e hold that the trial court did not err to the

extent that it dismissed this claim under chapter 14 as frivolous. However, it is

possible that Hamilton may address this deficiency by amending his pleadings to

specify how Pechacek’s alleged actions caused actual injury to a legal claim by

prejudicing Hamilton’s position as a litigant. See id. Accordingly, we hold that the

trial court abused its discretion by dismissing Hamilton’s section 1983 open courts

claim with prejudice.

              8.     Hamilton’s Claim for Injunctive Relief

       Hamilton’s original petition requests a temporary restraining order and an

eight-point prohibitory injunction against Pechacek to ensure Pechacek’s ongoing

compliance with TDCJ regulations and federal and state law. 10 Hamilton argues that

       10
         Specifically, Hamilton sought to enjoin Pechacek from (1) communicating
with Hamilton “in vulgar, obscene, or indecent language, or in a coarse or offensive
manner, with intent to annoy or alarm”; (2) threatening to “take unlawful action”
against Hamilton or others with personal knowledge of the facts of the case; (3)
causing bodily injury to Hamilton or any witnesses in this case; (4) threatening
Hamilton or witnesses with “imminent bodily injury”; (5) causing “offensive or
provocative” physical contact with Hamilton or witnesses; (6) intentionally subjecting
Hamilton “to mistreatment or to arrest, detention, search, seizure, dispossession,
assessment, or lien that he knows is unlawful”; (7) intentionally denying or impeding
Hamilton “in the exercise or enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful”; and (8) intentionally subjecting Hamilton to sexual

                                           22
the trial court erred by dismissing this request because he adequately pleaded every

element necessary to obtain injunctive relief. 11 In response, Pechacek contends that

Hamilton’s request for injunctive relief fails because he did not allege the threat of

imminent injury.

      In an appeal from an order granting or denying a temporary injunction, the

scope of review is restricted to the validity of the order granting or denying relief.

Walling v. Metcalfe, 863 S.W .2d 56, 58 (Tex. 1993); Argyle ISD v. Wolf, 234 S.W .3d

229, 237 (Tex. App.—Fort W orth 2007, no pet.). W hether to grant or deny a request

for a temporary injunction is within the trial court’s discretion, and we will not reverse

its decision absent an abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W .3d

198, 204 (Tex. 2002) (op. on reh’g); Walling, 863 S.W .2d at 58.

      To be entitled to a temporary injunction, the applicant generally must plead a

cause of action and further show both a probable right to recover on that cause of

action and a probable, imminent, and irreparable injury in the interim. Butnaru, 84

S.W .3d at 204; Argyle ISD, 234 S.W .3d at 236. An injunction is not proper when the

claimed injury is merely speculative; fear and apprehension of injury are not


harassment.
      11
         Hamilton also requested a protective order against Pechacek and a
mandatory injunction ordering the Executive Director of the TDCJ to file a complaint
against Pechacek with the W ichita County District Attorney. Hamilton failed,
however, to raise or brief any point challenging the trial court’s dismissal of these
requests. Therefore, for purposes of this appeal, any alleged error by the trial court
in denying these requests is waived. See Tex. R. App. P. 38.1(e), (h); Fredonia
State Bank, 881 S.W .2d at 284–85; Leachman, 261 S.W .3d at 305 n.3.

                                           23
sufficient to support a temporary injunction. Frequent Flyer Depot Inc. v. Am.

Airlines, Inc., 281 S.W .3d 215, 227 (Tex. App.—Fort W orth 2009, pet. denied);

Jordan v. Landry's Seafood Rest., Inc., 89 S.W .3d 737, 742 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied) (op. on reh’g). Thus, “[a]n injunction will not issue

unless it is shown that the respondent will engage in the activity enjoined.” State v.

Morales, 869 S.W .2d 941, 946 (Tex. 1994).

      Here, only one alleged incident forms the factual basis of Hamilton’s

claims—Pechacek’s alleged assault on January 9, 2008, by intentionally or

negligently spilling coffee on Hamilton and his legal documents. In his original

petition, Hamilton contends that “[t]he assault and battery took place from a common

and ongoing unjustified and excessive mistreatment of offenders.“ Hamilton makes

no factual allegation, however, supporting this contention or otherwise indicating that

he faces any threat of imminent injury from Pechacek. Because Hamilton makes no

factual allegation of the threat of imminent injury, we hold that the trial court did not

abuse its discretion by denying his request for injunctive relief with prejudice. 12

                                   VI. C ONCLUSION

      Because we have held that the trial court abused its discretion by dismissing

Hamilton’s common law assault and battery and personal property claims, his

section 1983 excessive force claim against Pechacek individually, and by dismissing

      12
          Based on our holding that Hamilton failed to allege the threat of imminent
injury, we do not address, and express no opinion regarding, Pechacek’s alternative
arguments attacking Hamilton’s request for injunctive relief.

                                           24
with prejudice Hamilton’s section 1983 access to courts claim, we reverse the trial

court’s order as to the dismissal of those claims with prejudice and remand those

claims for further proceedings consistent with this opinion.

      W e affirm the remainder of the trial court’s judgment including the dismissal

with prejudice of Hamilton’s request for injunctive relief; his section 1983 excessive

force claim against Pechacek in his official capacity; his section 1983 Due Process

claim for the destruction of property; his damages claim based solely upon alleged

Texas constitutional violations; his claims based solely upon alleged violations of

TDCJ rules, policies, and procedures; his claims based on Texas Penal Code

violations or Texas Government Code sections 501.007 and 501.008; and his claims

for declaratory judgment, protective order, and mandatary injunction.


                                                     SUE W ALKER
                                                     JUSTICE


PANEL: LIVINGSTON, W ALKER, and MEIER, JJ.

DELIVERED: March 11, 2010




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