NUMBER 13-13-00497-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JIM HERBERT HAMILTON JR., Appellant,
v.
BRAD LIVINGSTON, ERIC R. JOHNSTON,
MATT BARBER, LINCOLN CLARK,
AND NORMA J. PEREZ, Appellees.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant, Jim Herbert Hamilton Jr., an inmate proceeding pro se and in forma
pauperis, appeals from an order dismissing his lawsuit against appellees, Brad
Livingston, Eric R. Johnston, Matt Barber, Lincoln Clark, and Norma J. Perez, as frivolous
for failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code.
See TEX. CIV. PRAC & REM. CODE ANN. §§ 14.001–.014 (West, Westlaw through 2013 3d
C.S.). By two issues, Hamilton contends that the trial court erred (1) in dismissing his
suit pursuant to chapter 14 of the civil practice and remedies code; and (2) by considering
the Attorney General’s Amicus Curiae Advisory in dismissing his claim. We affirm.
I. BACKGROUND
Hamilton brought suit against Livingston, Johnston, Barber, Clark, and Perez, all
Texas Department of Criminal Justice (TDCJ) officials, claiming that they violated section
501.067 of the government code when they denied him access to over-the-counter (OTC)
medication due to his inability to pay for such medication. See TEX. GOV’T CODE ANN. §
501.067 (West, Westlaw through 2013 3d C.S.). Section 501.067 provides the following:
(a) In this section, “over-the-counter medication” means medication that
may legally be sold and purchased without a prescription.
(b) The department shall make over-the-counter medication available for
purchase by inmates in each inmate commissary operated by or under
contract with the department.
(c) The department may not deny an inmate access to over-the-counter
medications as a result of the inmate's inability to pay for the medication.
The department shall pay for the cost of over-the-counter medication for
inmates who are unable to pay for the medication out of the profits of inmate
commissaries operated by or under contract with the department.
(d) The department may adopt policies concerning the sale and purchase
of over-the-counter medication under this section as necessary to ensure
the safety and security of inmates in the custody of, and employees of, the
department, including policies concerning the quantities and types of over-
the-counter medication that may be sold and purchased under this section.
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Id.1
Regarding the alleged violation, Hamilton pleaded the following:
[Hamilton, an inmate,] sought to obtain $21.50 worth of over-the-
counter medication that may [l]egally be sold and purchased without a
prescription. . . . When [his] inmate trust fund account card was scanned,
Ms. Rupe[, the store clerk,] informed [Hamilton], he had no funds today.
[Hamilton] . . . replied, he sought access to over-the-counter medication
available to indigent offenders. Ms. Rupe sought instructions from the
Commissary Manager, Defendant Perez. [Hamilton] heard Defendant
Perez stated, “We ain’t got nothing free! They need to go through the Law
Library of [sic] medical Department.”
Hamilton identified Livingston as the Executive Director of TDCJ and Johnston as
the Director of the TDCJ Commissary and Trust Fund. In his pleading, Hamilton alleged
that Johnston was responsible for the creation of a “policy that denied indigent offenders
access to over-the-counter medication [and] requir[ed] offenders to go through medical
for a prescription of medication that create[d] a financial hardship on the inmate who
initiat[ed] an I-60 request to medical in the sum of $100.00 co-payment.” He also alleged
that Livingston was responsible for this policy’s administration and enforcement.
According to Hamilton, Perez, the commissary manager, was responsible for the day-to-
day operation of the McConnell Unit’s commissary and for continuously denying inmates
who were unable to pay for the medication, access to OTC medication and Barber, an
assistant warden, and Clark, an assistant Region IV director, were responsible for
reviewing different levels of Hamilton’s grievance process and upholding the
commissary’s alleged refusal to comply with section 501.067. Hamilton sought injunctive
1 Section 501.067, titled “Availability of Certain Medication,” is located in chapter 501, “Inmate
Welfare,” subchapter B, “General Medical and Mental Health Care Provisions,” of the Texas Government
Code. TEX. GOV'T CODE ANN. § 501.067 (West, Westlaw through 2013 3d C.S.).
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relief and damages.
The Attorney General filed an Advisory with the trial court recommending dismissal
for Hamilton’s failure to comply with the requirements of chapter 14. It argued that the
trial court should dismiss Hamilton’s suit as frivolous because his claims had no basis in
law. In his response, Hamilton argued that the trial court should deny the Attorney
General’s Advisory because it was untimely filed. On August 20, 2013, the trial court
entered final judgment, dismissing Hamilton’s claims as frivolous for failure to comply with
the requirements of chapter 14. This appeal followed.
II. APPLICABLE LAW
Because Hamilton is proceeding in forma pauperis in this action, the requirements
of chapter 14 of the Texas Civil Practice and Remedies Code govern his lawsuit. See
Parsons v. Dallas County, 197 S.W.3d 915, 917 (Tex. App.—Dallas 2006, no pet.) (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (“This chapter applies only to a suit brought
by an inmate . . . in which an affidavit or unsworn declaration of inability to pay costs is
filed by the inmate.”)); see also Harrison v. Iglesias, No. 13-01-160-CV, 2002 WL 366525,
at *2 (Tex. App.—Corpus Christi Mar. 7, 2001, no pet.) (op., not designated for
publication) (applying chapter 14 requirements in a lawsuit filed by an inmate who filed
declaration of inability to pay costs). And as of January 1, 2012, chapter 14 applies to
both original and appellate in forma pauperis inmate actions. Douglas v. Moffett, 418
S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see TEX. CIV. PRAC. &
REM. CODE ANN. § 14.002(a); see also Hickman v. Tex. Dep’t of Crim. Justice, No. 13-12-
00437-CV, 2013 WL 3770916, at *2 (Tex. App.—Corpus Christi July 18, 2013, no pet.)
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(mem. op.).
A court may dismiss a claim brought under chapter 14 if it is frivolous or malicious.
TEX. CIV. PRAC. & REM. CODE ANN. 14.003(a)(2). In consideration of the purposes of
chapter 14, the discretion of the court to dismiss claims governed by chapter 14 is broad.
Jackson v. Tex. Dep’t of Crim. Justice–Inst. Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus
Christi 2000, pet. denied); see Montana v. Patterson, 894 S.W.2d 812, 814–15 (Tex.
App.—Tyler 1994, no writ) (identifying the following reasons courts are given such broad
discretion: (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 to deter frivolous claims;
and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials,
courts, and meritorious claimants). Whether a claim has an arguable basis in law or in
fact may be considered by the court in determining whether such a claim is frivolous or
malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(2). A court may consider
whether an in forma pauperis inmate complies with certain procedural requirements in his
original or appellate action, such as filing an affidavit of previous filings. TEX. CIV. PRAC.
& REM. CODE ANN. §§ 14.003(a)(2), 14.004; see id. § 14.003(b)(4) (“In determining
whether a claim is frivolous or malicious, the court may consider whether . . . the claim is
substantially similar to a previous claim filed by the inmate because the claim arises from
the same operative facts.”).
III. STANDARD OF REVIEW
We review a trial court’s dismissal of an inmate’s claims pursuant to chapter 14
under an abuse of discretion standard. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.
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App.—Corpus Christi 2001, pet. denied). Abuse of discretion occurs if the trial court
acted without any reference to guiding rules or principles. Id. The fact that an appellate
court might decide a matter differently than the trial court does not demonstrate that an
abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985). A clear failure by the trial court to analyze or apply the law
correctly is an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.
1995).
Because the order of dismissal in this case does not specify the grounds upon
which it was granted, we will affirm the order if any of the grounds presented to the trial
court were meritorious. See Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004); Johnson
v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990) (explaining that an appellate court will
affirm a dismissal if it was proper under any legal theory); see also Brown v. Tex. Bd. of
Crim. Justice, No. 13-01-713-CV, 2002 WL 34249737, at *1 (Tex. App.—Corpus Christi
June 20, 2002, no pet.) (op., not designated for publication). “In conducting our review,
we take as true the allegations in the 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.” Leachman v. Dretke, 261 S.W.3d
297, 304 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g) (citing Scott v. Gallagher,
209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Harrison v. Tex.
Dep’t of Crim. Justice, Inst. Div., 164 S.W.3d 871, 875 (Tex. App.—Corpus Christi 2005,
no pet.)). “A claim has no arguable basis in law if it is an indisputably meritless legal
theory.” Id. (citing Scott, 209 S.W.3d at 266–67).
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IV. FAILURE TO COMPLY WITH CHAPTER 14 REQUIREMENTS ON APPEAL
We first address the Attorney General’s contention that we should dismiss this
appeal because Hamilton failed to comply with the procedural requirements of chapter
14. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.003(a)(2), (b)(4), 14.004. The
Attorney General asserts that Hamilton is noncompliant because he failed to file an
updated affidavit relating to previous filings with this Court. See id. § 14.004. However,
on July 11, 2014, Hamilton filed his reply brief with an appendix. The appendix contained
Hamilton’s updated affidavit relating to previous filings. Because section 14.004
provides no timeframe for the filing of this affidavit, we conclude that Hamilton has
satisfied this chapter 14 requirement. See id. § 14.004. And the Attorney General’s
argument fails.
V. DISMISSAL AS FRIVOLOUS—NO BASIS IN LAW
By his first issue, Hamilton contends that the trial court abused its discretion
in determining that Hamilton’s original petition for injunction and damages
alleging TDCJ and its agents have deliberately and intentionally created a
policy and practice that encourage and instruct its staff [to] deny an inmate
access to over the counter medication available for purchase by inmates in
each inmate commissary, as a result of the inmate’s inability to pay for the
medication [h]as no basis in law.
On behalf of appellees, the Attorney General contends that the trial court properly
dismissed Hamilton's claims, which were based on section 501.067 of the government
code, because that section does not provide a private cause of action and because
Hamilton cannot “amalgamate several causes of action[] with [g]overnment [c]ode
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§[ ]501.067, including 42 U.S.C. §[ ]1983, to create a ‘cognizable cause of action.’”2 We
agree with the Attorney General.
1. No Cause of Action under Section 501.067
“Neither the [p]enal [c]ode nor the civil statutes establishing and governing
penitentiaries create private actions for the alleged wrongs of prison officials.” Spellmon
v. Sweeney, 819 S.W.2d 206, 211 (Tex. App.—Waco 1991, no writ). And nowhere does
section 501.067 express a legislative intent to provide a private cause of action to an
inmate for a violation of the provisions governing the purchase of OTC medications by
inmates. See TEX. GOV’T CODE ANN. § 501.067. So to the extent Hamilton is attempting
to bring a section 501.067 private cause of action for appellees’ alleged wrongs, it is a
meritless legal theory and provides no arguable basis in law. See Leachman, 261
S.W.3d at 304 (citing Scott, 209 S.W.3d at 266–67).
2. No Section 1983 Claim for Alleged Violation of a Property Interest
Nonetheless, Hamilton now contends that his claim is viable as a section 1983
claim. See 42 U.S.C.A. § 1983 (West, Westlaw through 2014 P.L. 113–125) (“Every
2 The Attorney General also claims that Hamilton is now asserting on appeal that he was entitled
to a hearing before the trial court dismissed his claims. This could be a proper challenge if, without a
hearing, the trial court had dismissed his claims on the ground that there was no basis in fact. See Harrison
v. Tex. Dep’t of Crim. Justice, Inst. Div., 164 S.W.3d 871, 875 (Tex. App.—Corpus Christi 2005, no pet.)
(“Because the trial judge held no hearing on the motion to dismiss, he may not dismiss on the ground that
there was no arguable basis in fact.”). But Hamilton states in his reply brief that he “does not make such
assertion.” He explains that when he referred to “holding a hearing on factual issues” in his appellate brief,
he was “merely outlin[ing] for the [C]ourt’s convenien[ce] the applicable law in which Texas [c]ourt[s] of
[a]ppeals have held how their review of a pro se litigant’s case should be reviewed when the trial court fails
to conduct a ‘factual’ hearing when it dismisses a claim or suit.” By this statement and the issues and
arguments presented on appeal, it is apparent that Hamilton and the Attorney General agree that the trial
court generally dismissed Hamilton’s claims as frivolous on the ground that they had no basis in law, not in
fact. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (West, Westlaw through 2013 3d C.S.); Scott v.
Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). So our review focuses on
whether Hamilton’s lawsuit has an arguable basis in law.
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person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .”). We disagree.
In his original petition for injunction and damages, Hamilton identified the parties
and their alleged non-compliance with government code section 501.067 as the basis for
his pleadings. Hamilton did not cite to any authority regarding, for example, due process
protection or whether he has “a legitimate claim of entitlement to it.” See Ky. Dep’t of
Corrections v. Thompson, 490 U.S. 454, 459–60 (1989). Hamilton did not plead the
denial of a protected property interest.
Now, on appeal, Hamilton argues that he pleaded a section 1983 claim for alleged
violations of a property interest in any over-the-counter medications. He asserts that the
“property interest in the medication available to the indigent inmate through the
[g]overnment [c]ode” forms the basis of his alleged 1983 claim. Hamilton bases his
appellate argument on the alleged denial of a property interest in the medication—an
interest he claims the government code section 501.067 created.3 However, “[i]t is well-
3It is apparent that Hamilton uses the phrase “liberty/property interest” in his appellate writing in
an attempt to support his argument that he pleaded the deprivation of a property interest in the trial court
when he used the phrase “liberty interest” in his original petition. When discussing Clark’s denial of his
grievance at paragraph VIII of his petition, Hamilton set out the following:
On November 1, 2012, pursuant to policy Plaintiff filed his step 2 grievance with defendant
L. Clark, alleging, his dissatisfaction with step 1 response because McConnel[l] Units
commissary deliberate failure to make over-the-counter medication available to indigent
grievant due to his inability to pay for the medication denied grievance [sic] a liberty interest
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settled that an appellate court should not decide a case on a theory different from that on
which it was pleaded and tried.” Loera v. Interstate Inv. Corp., 93 S.W.3d 224, 228 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied) (quoting Wiley-Reiter Corp. v. Groce, 693
S.W.2d 701, 704 (Tex. App.—Houston [14th Dist.] 1985, no writ)). Hamilton cannot
rewrite his pleadings by alleging new causes of action for the first time on appeal. See
id.
We conclude Hamilton had no arguable bases in law for his suit. The trial court
did not abuse its discretion in dismissing his suit as frivolous on that basis. See TEX. CIV.
PRAC. & REM. CODE ANN. § 14.003(b)(2). We overrule Hamilton’s first issue.
VI. CONSIDERATION OF AMICUS CURIAE ADVISORY
By his second issue, Hamilton contends that the trial court abused its discretion
when it dismissed his claims after considering the Attorney General’s Advisory. He
argues that the trial court erred when it allowed the Attorney General to use “the Amicus
created by state statu[t]e. January 14, 2013, Plaintiff received Defendant Clark’s
response dated November 11, 2012, reciting the last part of the statute concerning TDCJ’s
ability to adopt policies and instructed plaintiff to submit a sick call to medical if he nee[ds]
medication. . . .
At paragraph X of his petition, Hamilton again referred to the following liberty, not property, interest:
Defendants will continue [to] deny indigent offenders access to over-the-counter
medication because of their inability to pay the cost of the medication causing irreparable
harm. Forcing him to initiate a visit to health care service for over-the-counter medication
that is available at a cheaper prices than the $100.00 co-pay that will inevitably be
assessed. As a direct and proximate result of Defendant’s conduct as above described,
their interference with plaintiff’s liberty interest also alter the status quo of the availability of
the over-the-counter medication to indigent offenders, through the Government code,
unless Defendant’s compliance with the Government statute is complied by the equitable
power of the court, the over-the-counter medication will not be available to any offender
who is unable to pay cost medication. . . .
And although Hamilton used the phrase “liberty interest” in his petition, he clearly abandoned the “liberty
interest” argument on appeal. Moreover, we conclude any such argument, without more, is inadequately
briefed. See TEX. APP. R. 38.1(i).
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Curiae route to occupy the position of attorney for TDCJ and its agents to argue the facts
of Hamilton’s suit and challenge the validity of process of service orded [sic] by the trial
court.” Yet it is well within the trial court’s discretion to dismiss a claim under the purview
of Chapter 14, before or after service of process, if the court finds such a claim frivolous.
See id. § 14.003(a)(2). And while courts may consider suggestions from amicus curiae
briefs, they are constrained to take only actions that are available to the court in the
absence of the suggestions of the amicus curiae. See State v. Jefferson Iron Co., 60
Tex. 312, 314–15 (Tex. 1883); Moseby v. Burrow, 52 Tex. 396, 403 (Tex. 1880); Jackson
v. Birk, 84 S.W.2d 332, 332 (Tex. Civ. App.—Fort Worth 1935, no writ); see also Kelley
v. Scott, No. 14-01-00696-CV, 2003 WL 21229275, at *1 (Tex. App.—Houston [14th Dist.]
May 29, 2003, no pet.) (mem. op.).
In this case, we have already determined that the trial court did not abuse its
discretion when it dismissed appellant’s claims as frivolous pursuant to chapter 14, an
action that was available to the court under the law even in the absence of any
suggestions made in the Attorney General’s Advisory. See The Jefferson Iron Co., 60
Tex. at 314–15. We further conclude that it did not err in considering the Advisory. We
overrule Hamilton’s second issue.
VII. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 4th
day of December, 2014.
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Jim Herbert Hamilton Jr. v. Brad Livingston, Eric R. Johnston, Matt Barber, Lincoln Clark, and Norma J. Perez
Combined Opinion