Opinion filed July 25, 2019




                                       In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00229-CV
                                  __________

                     DAVID WAYNE SMITH, Appellant
                                         V.
          LINDA GONZALES AND JANIE PEEK, Appellees

                      On Appeal from the 32nd District Court
                            Mitchell County, Texas
                          Trial Court Cause No. 16899


                      MEMORANDUM OPINION
       David Wayne Smith appeals the trial court’s dismissal of his suit against
Warden Linda Gonzales and Corrections Officer Janie Peek, both of the Texas
Department of Criminal Justice. Appearing pro se and in forma pauperis, Appellant
challenges the dismissal of his suit by the trial court. We affirm.
                                 Background Facts
       Appellant is an inmate housed in the Institutional Division of the Texas
Department of Criminal Justice. Appellant sued Appellees solely in their official
capacity, asserting alleged violations of the Fifth and Fourteenth Amendments to the
U.S. Constitution and alleged violations arising out of Section 39.03 of the Texas
Penal Code1 for refusing to provide Appellant with a copy of the Uniform
Commercial Code.           Specifically, Appellant stated as follows in the opening
paragraph of his petition: “Linda Gonzales Warden, Janie R. Peek Law Library Clerk
YOU HAVE BEEN SUED; Both Defendants of the Dick Ware Unit in your official
capacity . . . .” Appellant concluded his petition with the following damage claim:
“The Plaintiff request [sic] this court to order the Defendant to Pay 25,000 Dollars
each in there [sic] official capacity . . . .”
       Appellees filed a motion to dismiss, alleging that Appellant’s claim was
frivolous and that Appellant failed to comply with the procedural prerequisites under
Chapter 14 of the Texas Civil Practice and Remedies Code. Appellees asserted that
Appellant’s claims were barred by sovereign immunity and were, therefore,
frivolous. Appellees also alleged that Appellant could not bring a private cause of
action under the Texas Penal Code. Finally, Appellees asserted that Appellant did
not comply with the procedural requirements of Chapter 14 of the Texas Civil
Practice and Remedies Code because he (1) failed to file an affidavit or declaration
describing each previously filed lawsuit and (2) failed to exhaust his administrative
remedies. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004–.005 (West 2017).
The trial court dismissed Appellant’s suit with prejudice.
                                              Analysis
       In his sole issue, Appellant contends that the trial court abused its discretion
by dismissing his suit. Inmate litigation is governed by Chapter 14 of the Texas
Civil Practice and Remedies Code. Chapter 14 applies when, as here, an inmate files
suit in a district court and files an affidavit of inability to pay costs. CIV. PRAC. &

       1
       Section 39.03 of the Texas Penal Code sets out the criminal offense of official oppression. TEX.
PENAL CODE ANN. § 39.03 (West 2016).
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REM. § 14.002; see Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.—Fort
Worth 2008, no pet.). Under Chapter 14, a trial court may dismiss an inmate’s
lawsuit for failing to comply with the chapter’s procedural requirements; it may also
dismiss a lawsuit that is malicious or frivolous. CIV. PRAC. & REM. § 14.003; Scott v.
Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
      The legislature enacted Chapter 14 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. 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). A claim is frivolous if it has no basis in law or fact. Comeaux, 193
S.W.3d at 86.
      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, our review focuses on whether the inmate’s lawsuit has an
arguable basis in law. Calton v. Schiller, 498 S.W.3d 247, 253 (Tex. App.—
Texarkana 2016, pet. denied). “While 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.” Hamilton, 319 S.W.3d at 809. “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) (per curiam)). “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
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of law, the petition stated a cause of action that would authorize relief.” Id. “A
claim has no arguable basis in law if it relies upon an indisputably meritless legal
theory.” Id.
      We first note that the Texas Penal Code does not create a private cause of
action. Id. at 813 (citing 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, Appellant’s claims based on Appellees’ alleged violation of the Texas
Penal Code are frivolous because they lack an arguable basis in law.
      As noted previously, Appellant sued Appellees solely in their official
capacity. A suit against a state official in his official capacity “is not a suit against
the official personally, for the real party in interest is the entity.” Texas A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham,
473 U.S. 159, 166 (1985)). “Such a suit actually seeks to impose liability against
the governmental unit rather than on the individual specifically named and ‘is, in all
respects other than name, . . . a suit against the entity.’” Id. (quoting Graham, 473
U.S. at 166); see also Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d
849, 855–56 (Tex. 2002). “Absent legislative waiver, sovereign immunity deprives
Texas state courts of subject-matter jurisdiction over any suit against the State or its
agencies or subdivisions.” Livingston v. Beeman, 408 S.W.3d 566, 572 (Tex.
App.—Austin 2013), aff’d, 468 S.W.3d 534 (Tex. 2015). That same immunity
extends to Texas state officials who are sued in their official capacities. Id.
      Appellant’s suit against Appellees is in the nature of a Section 1983 action.
42 U.S.C.A § 1983; Hamilton, 319 S.W.3d at 811 (“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.”). Section 1983 does not abrogate a state’s sovereign
immunity from suit without the state’s consent. Hamilton, 311 S.W.3d 811. “When


                                           4
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.” Id.
        Because Appellant sued Appellees solely in their official capacity, the trial
court did not abuse its discretion by dismissing with prejudice his claims against
Appellees. See id. Appellant’s claims are frivolous as a matter of law because
Appellees enjoy sovereign immunity from suit against Appellant’s claims. See id.
In light of our determination that Appellant’s claims are frivolous as a matter of law,
we do not reach Appellees’ contention that Appellant failed to comply with the
procedural requirements of Chapter 14. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


July 25, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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