NUMBER 13-12-00707-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JIM H. HAMILTON JR., Appellant,
v.
BRAD LIVINGSTON, ET AL., Appellees.
On appeal from the 343rd District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
This case involves inmate litigation pursuant to chapter 14 of the civil practice and
remedies code. See generally TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014
(West 2002). By two issues, appellant Jim Herbert Hamilton Jr. (1) challenges the trial
court’s order dismissing his causes of action; and (2) asserts that the trial court erred by
issuing a void order for cost and fees. We affirm.
I. BACKGROUND
Hamilton is imprisoned for life in the Texas Department of Criminal
Justice—Institutional Division’s William McConnell Unit in Beeville, Texas. On May 4,
2012, Hamilton filed an original petition against prison officials Brad Livingston, and
others,1 alleging causes of actions for premises liability under the Texas Tort Claims Act,
see id. § 101.021(1) (West 2011), and intentional denial of administrative remedy and
compensation.
According to Hamilton’s petition, his claims stem from a leak in the corner ceiling
of his jail cell. Hamilton alleges that on December 2, 2011, rain water leaked into his
cell through a hole in the ceiling, which caused damage to his typewriter. As a result of
the damage caused to his typewriter, Hamilton alleges that he was deprived use of the
typewriter and had to handwrite all of his letters and legal documents. Because he had
to handwrite all of his letters and documents, Hamilton contends that he suffered chronic
back and hip pain, arthritis in his hand, and emotional distress. Hamilton also alleges
that the defendants failed to follow rules in the handling of grievances that they deprived
him of a meaningful administrative remedy.
Shortly after Hamilton filed his petition, the trial court entered various orders,
including: (1) an order assessing cost for filing fees, along with a bill of cost; (2) an
1
The full list of defendants in this cause are as follows: Brad Livingston, Matt Barber, Cheryl
Lawson, Tamra J. McCullough, and Sandra Castaneda.
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order to the inmate trust fund regarding the bill of cost for filing fees; and (3) an order
requesting that the Attorney General file as amicus curiae in the matter after reviewing
the pleadings, affidavits, unsworn declarations, and exhibits for compliance. On
November 9, 2012, after considering Hamilton’s petition, the Attorney General’s amicus
curiae brief, and Hamilton’s response, the trial court ordered Hamilton’s cause dismissed
after finding it frivolous or malicious. See id. § 14.003(a)(2) (West 2002). This appeal
followed.
II. DISMISSAL ORDER
By his first issue, Hamilton asserts that the trial court erred in dismissing his cause
of action.2
A. Standard of Review and Applicable Law
We review a dismissal order under chapter 14 of the civil practice and remedies
code for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.
App.—Waco 1996, no pet.). A trial court abuses its discretion when it acts arbitrarily,
unreasonably, or without reference to any guiding rules and principles. Downer v.
Aquamarine Ops., Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Under chapter 14, a trial court may dismiss a claim filed by an inmate, either
2
In his brief, Hamilton asserts that the trial court erred by not considering his “additional claims” of
intentional deprivation and theft of property under Texas law. However, a review of Hamilton’s pleadings
shows that he asserted two causes of action: (1) a premises liability claim under the Texas Tort Claims
Act, see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2011), for damages; and (2) the intentional
denial of administrative remedies and compensation. Accordingly, we will treat Hamilton’s first issue as a
general challenge to the trial court’s order of dismissal. See TEX. R. APP. P. 38.9 (“Because briefs are
meant to acquaint the court with issues in a case and to present argument that will enable the court to
decide the case, substantial compliance with this rule is sufficient . . . .”).
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before or after service of process, if it finds:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this
chapter that the inmate knew was false.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a) (West 2002). 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).
B. Discussion
The trial court made two specific findings regarding the frivolousness of
Hamilton’s petition—first, that the claim’s realistic chance of ultimate success is slight;
and second, that the claim has no arguable basis in law or in fact. See id. §
14.003(b)(1)–(2).
We turn first to Hamilton’s claim that alleges a premises defect. Generally, under
the Texas Tort Claims Act, a governmental unit owes the claimant only the duty that a
private person owes to a licensee on private property, unless the claimant pays for the
use of the premises. See id. § 101.022 (West 2011). The duty owed to a licensee is to
not injure the licensee by willful, wanton, or grossly negligent conduct and, in cases in
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which the licensor has actual knowledge of a dangerous condition unknown to the
licensee, to use ordinary care to either warn the licensee of the condition or make the
condition reasonably safe. See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.
2008) (per curiam). In order to establish liability, a licensee must prove (1) a condition
of the premises created an unreasonable risk of harm to the licensee; (2) the licensor
actually knew of the condition; (3) the licensee did not actually know of the condition; (4)
the licensor failed to exercise ordinary care to protect the licensee from danger; and (5)
the licensor's failure was a proximate cause of injury to the licensee. State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.3d 235, 237 (Tex. 1992) (op. on reh’g).
According to Hamilton’s petition, as a result of the water damage to his typewriter,
he had no choice but to write all of letters and legal documents by hand, which caused or
exacerbated various physical maladies in his hand, hip, and back and also caused him
emotional distress. Even assuming that Hamilton can legally and factually establish the
first four elements of liability, see id., it was reasonable for the trial court to find that the
alleged facts did not support a basis to establish proximate cause of his injuries.
Nothing in the record shows that Hamilton’s alleged physical and emotional injuries were
caused by handwriting instead of typing his legal documents and letters. As a result,
the trial court did not abuse its discretion in concluding that evidence of water damage to
a typewriter was insufficient to proximately cause physical and emotional damages from
having to handwrite documents. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(2).
Furthermore, it is also reasonable for a trial court to conclude that such an allegation,
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based on this record, has but a slight chance of ultimate success. See id. §
14.003(b)(1).
Next, we turn to Hamilton’s second claim, which is essentially a procedural due
process violation for an intentional denial of administrative remedy and compensation.
The first inquiry in any due process challenge is whether the plaintiff has been deprived
of a protected property or liberty interest. Leachman v. Dretke, 261 S.W.3d 297, 314
(Tex. App.—Fort Worth 2008, no pet.) (citing See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 59 (1999)). Procedural due process merely requires that when a governmental
entity deprives an individual of liberty or property, that it do so “in a fair manner.”
Leachman, 261 S.W.3d at 314 (citing United States v. Salerno, 481 U.S 739, 746
(1987)). Hamilton’s petition does not assert what protected property or liberty interest is
at stake by the prison unit’s purported intentional denial of his administrative remedies
and compensation.3 Thus, it was reasonable for the trial court to conclude that this
particular claim had no arguable basis in law.
Accordingly, we conclude that the trial court did not abuse its discretion in
dismissing Hamilton’s petition pursuant to section 14.003(b). See Hickson, 926 S.W.2d
at 398. Hamilton’s first issue is overruled.
3
We note an analogous federal case, in which a prisoner, Geiger, filed suit under the Prison
Litigation Reform Act, see 42 U.S.C. § 1997e (2013), and alleged that prison officials failed to properly
investigate his grievances and letters complaining about conduct in the prison’s mail room and by security
staff. See Geiger v. Jones, 404 F.3d 371, 373 (5th Cir. 2005). The Fifth Circuit panel held that Geiger’s
relief for due process violations was frivolous because “[a] prisoner has a liberty interest only in freedom[s]
from restraint . . . impos[ing] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. (emphasis in original) (internal citations omitted). The court further held that
Geiger does not have a federally protected liberty interest in having his grievances resolved to his
satisfaction. Id.
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III. ORDER TO PAY FILING FEES
By his second issue, Hamilton contends that the trial court erred in issuing an
order that required him to pay cost and fees not yet incurred because a final order had
not been issued dismissing his action.
A. Standard of Review and Applicable Law
We review a trial court’s order for an inmate to pay court fees, court costs, and
other costs under chapter 14 of the civil practice and remedies code for an abuse of
discretion. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.—Corpus Christi
2001, pet. denied).
Under section 14.006,
[a] court may order an inmate who has filed a claim to pay court fees, court
costs, and other costs in accordance with this section and section 14.007.
The clerk of the court shall mail a copy of the court's order and a certified
bill of costs to the department or jail, as appropriate.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(a) (West 2002). Furthermore, on the
court's order, the inmate shall pay an amount equal to the lesser of: (1) twenty percent of
the preceding six months’ deposits to the inmate’s trust account; or (2) the total amount of
court fees and costs. Id. § 14.006(b).
B. Discussion
Hamilton correctly acknowledges in his brief that a trial court is within its discretion
to order an inmate to pay costs and fees under section 14.006. See Id. § 14.006.
However, Hamilton incorrectly argues that the trial court’s order under section 14.006
was somehow void for failing to follow section 14.007. See id. § 14.007 (West Supp.
2011).
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Section 14.007 mandates that a trial court include expenses incurred by the court
or the department, jail, or private facility operator, in connection with the claim, and not
otherwise charged to the inmate under section 14.006, including expenses from service
of process, postage, and transportation, housing, or medical care incurred in connection
with the appearance of an inmate in the court for any proceeding in a section 14.006(a)
order, if the court finds that: (1) the inmate has previously filed an action to which
chapter 14 applies; and (2) a final order has been issued that affirms that the action was
dismissed as frivolous or malicious under section 13.001 or section 14.003. See id.
In this case, the trial court entered an order requiring Hamilton to pay the cost of
filing fees only. The trial court’s order was not an abuse of the trial court’s discretion
because such an order is allowed under section 14.006(a) and does not include the type
of costs necessary to invoke 14.007. See Skinner, 54 S.W.3d at 847. Even assuming
arguendo that a final order is required prior to a trial court’s assessment of costs under
section 14.006(a), such an argument is moot in this case because the trial court has
issued a final order finding Hamilton’s claims frivolous.
Hamilton next argues that the trial court abused its discretion in assessing costs
against him because he did not receive a copy of the bill of costs in violation of his right
to due process. Our review of the clerk’s record indicates that the Bee County District
Clerk’s office sent copies of the bill of cost to the office of general counsel, law
enforcement defense division, and Hamilton. Hamilton presents no evidence, other
than assertions in his brief, that he was not served with a copy of the bill of cost.
Accordingly, the record shows no due process violation, and thus, no abuse of
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discretion. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(a). Hamilton’s second
issue is overruled.
IV. CONCLUSION
We affirm.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
5th day of September, 2013.
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