IN THE TENTH COURT OF APPEALS
No. 10-09-00273-CV
OSVALDO N. CHAPA, Appellant v.
BRAD LIVINGSTON, Appellee
From the 278th District Court Walker County, Texas Trial Court No. 24,673
MEMORANDUM OPINION
Osvaldo N. Chapa, a Texas inmate, filed an in forma pauperis application for writ
of mandamus against Brad Livingston, executive director of the Texas Department of
Criminal Justice, for violations of the Public Information Act. The Texas Attorney
General filed an amicus curiae advisory requesting dismissal of the suit. The trial court
dismissed the suit under Chapter 14 of the Civil Practice and Remedies Code. Chapa
challenges: (1) the dismissal of his lawsuit; (2) TDCJ’s failure to post Chapter 14’s
requirements in the prison law library; (3) the trial court’s failures to conduct a hearing before dismissal and give him an opportunity to amend his pleadings; (4) violations of
his right to access the courts; and (5) the trial court’s failures to conduct a hearing on his
motion for new trial and file findings of fact and conclusions of law. We affirm.
DISMISSAL
In point one, Chapa contends that the trial court improperly dismissed his
lawsuit, with prejudice, under Chapter 14 of the Civil Practice and Remedies Code.
A trial court may dismiss a suit under Chapter 14 if it is frivolous, considering
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. TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003(a)(2), (b) (Vernon 2002). When, as here, the trial court determines
without a hearing that a claim is frivolous, that decision may be affirmed on appeal
only if the claim has no arguable basis in law. Long v. Tanner, 170 S.W.3d 752, 754 (Tex.
App.—Waco 2005, pet. denied) (citing Retzlaff v. Tex. Dep’t of Crim. Justice., 94 S.W.3d
650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). We review this issue de
novo. Id. We take the allegations of the plaintiff’s petition as true. Id. (citing Mullins v.
Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex. App.—Texarkana 2003, no pet.)). We
examine the claims asserted and the relief requested “to determine whether, as a matter
of law, the petition stated a cause of action that would authorize relief.” Id. (quoting
Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)).
Chapa v. Livingston Page 2 The trial court dismissed Chapa’s lawsuit for failure to comply with both the
procedural and substantive requirements of Chapter 14.
Chapter 14 requires an inmate to file (1) an affidavit or unsworn declaration
providing information regarding any previous filings; and (2) an affidavit or unsworn
declaration that states the “date that the grievance was filed and the date the written
decision…was received by the inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)
(Vernon 2002); TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (Vernon 2002). Neither
document was filed with Chapa’s original petition, but Chapa moved to supplement his
petition with the required affidavits. However, Chapa’s affidavit of previous filings
fails to state the “operative facts for which relief was sought.” TEX. CIV. PRAC. & REM.
CODE ANN. § 14.004(a)(2)(A).
Chapter 14 also requires an inmate to file a claim “before the 31st day after the
date the inmate receives the written decision from the grievance system.” TEX. CIV.
PRAC. & REM. CODE § 14.005(b). Chapa received a response to his step 2 grievance on
March 20, 2009, but filed suit on May 18, more than thirty-one days later. See id.
Dismissal was proper for failure to comply with the procedural requirements of
sections 14.004(a) and 14.005(b). See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied); see also Allen v. Tex. Dep’t of Crim. Justice-
Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
Dismissal was also proper for failure to comply with Chapter 14’s substantive
requirements. Chapa alleged that TDCJ violated the First, Fourth, Fifth, Sixth, Eighth,
Chapa v. Livingston Page 3 and Fourteenth Amendments to the United States Constitution by ignoring his request
for information under the Public Information Act.
While a governmental body need not comply with a request for information
from an incarcerated individual, it is not prohibited from disclosing information that
pertains to the inmate. See TEX. GOV’T CODE ANN. § 552.028(a), (b) (Vernon 2004); see also
Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. denied). Because
section 552.028 is not mandatory, but gives the governmental body discretion to
disclose or not disclose the requested information, Chapa’s claim under the Texas
Public Information Act has no arguable basis in law. See Hickman, 976 S.W.2d at 361; see
also Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App.—Dallas 2000, no pet.).
Because the trial court properly dismissed Chapa’s lawsuit for failure to comply
with the procedural and substantive requirements of Chapter 14, we overrule point one.
POSTING REQUIREMENTS
In point two, Chapa contends that the TDCJ failed to post the requirements of
Chapter 14 in the prison law library.
The 1995 session law enacting Chapter 14 required TDCJ to “post notice of the
provisions of this Act in each law library maintained by the department or under
contract with the department.” See Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 9, 1995
Tex. Gen. Laws 2921, 2926-27. “[T]he fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries…” Bounds v.
Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977) (emphasis added).
Chapa v. Livingston Page 4 “‘[M]eaningful access to the courts is the touchstone’…and the inmate therefore must
go one step further and demonstrate that the alleged shortcomings in the library or
legal assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey,
518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996) (quoting Bounds, 430 U.S.
at 823, 97 S. Ct. at 1495).
Even had Chapa complied with Chapter 14’s procedural requirements, his
asserted claim has no arguable basis in law. Accordingly, Chapa cannot show that
TDCJ’s failure to post notice of Chapter 14’s requirements rendered the prison law
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IN THE TENTH COURT OF APPEALS
No. 10-09-00273-CV
OSVALDO N. CHAPA, Appellant v.
BRAD LIVINGSTON, Appellee
From the 278th District Court Walker County, Texas Trial Court No. 24,673
MEMORANDUM OPINION
Osvaldo N. Chapa, a Texas inmate, filed an in forma pauperis application for writ
of mandamus against Brad Livingston, executive director of the Texas Department of
Criminal Justice, for violations of the Public Information Act. The Texas Attorney
General filed an amicus curiae advisory requesting dismissal of the suit. The trial court
dismissed the suit under Chapter 14 of the Civil Practice and Remedies Code. Chapa
challenges: (1) the dismissal of his lawsuit; (2) TDCJ’s failure to post Chapter 14’s
requirements in the prison law library; (3) the trial court’s failures to conduct a hearing before dismissal and give him an opportunity to amend his pleadings; (4) violations of
his right to access the courts; and (5) the trial court’s failures to conduct a hearing on his
motion for new trial and file findings of fact and conclusions of law. We affirm.
DISMISSAL
In point one, Chapa contends that the trial court improperly dismissed his
lawsuit, with prejudice, under Chapter 14 of the Civil Practice and Remedies Code.
A trial court may dismiss a suit under Chapter 14 if it is frivolous, considering
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. TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003(a)(2), (b) (Vernon 2002). When, as here, the trial court determines
without a hearing that a claim is frivolous, that decision may be affirmed on appeal
only if the claim has no arguable basis in law. Long v. Tanner, 170 S.W.3d 752, 754 (Tex.
App.—Waco 2005, pet. denied) (citing Retzlaff v. Tex. Dep’t of Crim. Justice., 94 S.W.3d
650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). We review this issue de
novo. Id. We take the allegations of the plaintiff’s petition as true. Id. (citing Mullins v.
Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex. App.—Texarkana 2003, no pet.)). We
examine the claims asserted and the relief requested “to determine whether, as a matter
of law, the petition stated a cause of action that would authorize relief.” Id. (quoting
Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)).
Chapa v. Livingston Page 2 The trial court dismissed Chapa’s lawsuit for failure to comply with both the
procedural and substantive requirements of Chapter 14.
Chapter 14 requires an inmate to file (1) an affidavit or unsworn declaration
providing information regarding any previous filings; and (2) an affidavit or unsworn
declaration that states the “date that the grievance was filed and the date the written
decision…was received by the inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)
(Vernon 2002); TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (Vernon 2002). Neither
document was filed with Chapa’s original petition, but Chapa moved to supplement his
petition with the required affidavits. However, Chapa’s affidavit of previous filings
fails to state the “operative facts for which relief was sought.” TEX. CIV. PRAC. & REM.
CODE ANN. § 14.004(a)(2)(A).
Chapter 14 also requires an inmate to file a claim “before the 31st day after the
date the inmate receives the written decision from the grievance system.” TEX. CIV.
PRAC. & REM. CODE § 14.005(b). Chapa received a response to his step 2 grievance on
March 20, 2009, but filed suit on May 18, more than thirty-one days later. See id.
Dismissal was proper for failure to comply with the procedural requirements of
sections 14.004(a) and 14.005(b). See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied); see also Allen v. Tex. Dep’t of Crim. Justice-
Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
Dismissal was also proper for failure to comply with Chapter 14’s substantive
requirements. Chapa alleged that TDCJ violated the First, Fourth, Fifth, Sixth, Eighth,
Chapa v. Livingston Page 3 and Fourteenth Amendments to the United States Constitution by ignoring his request
for information under the Public Information Act.
While a governmental body need not comply with a request for information
from an incarcerated individual, it is not prohibited from disclosing information that
pertains to the inmate. See TEX. GOV’T CODE ANN. § 552.028(a), (b) (Vernon 2004); see also
Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. denied). Because
section 552.028 is not mandatory, but gives the governmental body discretion to
disclose or not disclose the requested information, Chapa’s claim under the Texas
Public Information Act has no arguable basis in law. See Hickman, 976 S.W.2d at 361; see
also Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App.—Dallas 2000, no pet.).
Because the trial court properly dismissed Chapa’s lawsuit for failure to comply
with the procedural and substantive requirements of Chapter 14, we overrule point one.
POSTING REQUIREMENTS
In point two, Chapa contends that the TDCJ failed to post the requirements of
Chapter 14 in the prison law library.
The 1995 session law enacting Chapter 14 required TDCJ to “post notice of the
provisions of this Act in each law library maintained by the department or under
contract with the department.” See Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 9, 1995
Tex. Gen. Laws 2921, 2926-27. “[T]he fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries…” Bounds v.
Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977) (emphasis added).
Chapa v. Livingston Page 4 “‘[M]eaningful access to the courts is the touchstone’…and the inmate therefore must
go one step further and demonstrate that the alleged shortcomings in the library or
legal assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey,
518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996) (quoting Bounds, 430 U.S.
at 823, 97 S. Ct. at 1495).
Even had Chapa complied with Chapter 14’s procedural requirements, his
asserted claim has no arguable basis in law. Accordingly, Chapa cannot show that
TDCJ’s failure to post notice of Chapter 14’s requirements rendered the prison law
library so subpar as to hinder his efforts to pursue a legal claim. See Lewis, 518 U.S. at
351, 116 S. Ct. at 2180. We overrule point two.
ABSENCE OF HEARING BEFORE DISMISSAL FAILURE TO ALLOW OPPORTUNITY TO AMEND
In point three, Chapa contends that the trial court violated his rights to due
process, equal protection, and access to courts by failing to hold a hearing before
dismissing his lawsuit and failing to allow him an opportunity to amend.
Because the decision to hold a hearing on the dismissal of inmate litigation is
within the trial court’s discretion, the trial court did not err by dismissing Chapa’s
lawsuit without a hearing. See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—
Houston [1st Dist.] 2002, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(c);
Long, 170 S.W.3d at 754. Moreover, Chapa’s claim has no arguable basis in law; thus,
dismissal with prejudice was appropriate. See Nabelek v. Dist. Attorney of Harris County,
290 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Williams
Chapa v. Livingston Page 5 v. Ballard, No. 10-08-00378-CV, 2009 Tex. App. LEXIS 9246, at *4 (Tex. App.—Waco Dec.
2, 2009, no pet.) (mem. op.). We overrule point three.
ACCESS TO COURTS
In point four, Chapa contends that the trial court violated his right to open courts
by dismissing his lawsuit. However, Chapter 14 does not violate the constitutional
right to access the courts. See Sanders v. Palunsky, 36 S.W.3d 222, 226-27 (Tex. App.—
Houston [14th Dist.] 2001, no pet.); see also Hughes v. Massey, 65 S.W.3d 743, 745 (Tex.
Sapp.—Beaumont 2001, no pet.); Guynes v. Texas Bd. of Pardons & Paroles, No. 03-99-
00767-CV, 2000 Tex. App. LEXIS 3193, at *13 (Tex. App.—Austin May 18, 2000, no pet.)
(not designated for publication). We overrule point four.
ABSENCE OF HEARING ON MOTION FOR NEW TRIAL FAILURE TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW
In point five, Chapa challenges the trial court’s failure to hold a hearing on his
motion for new trial and denial of his motion for findings of fact and conclusions of law.
Because Chapa’s lawsuit was dismissed without a jury, the trial court did not err
by denying Chapa’s motion for new trial without a hearing. See Hamilton v. Williams,
298 S.W.3d 334, 338 (Tex. App.—Fort Worth 2009, pet. filed); see also Jefa Co. v. Mustang
Tractor & Equip. Co., 868 S.W.2d 905, 909 (Tex. App.—Houston [14th Dist.] 1994, writ
denied). Nor was the trial court required to file findings of fact and conclusions of law
when dismissing Chapa’s lawsuit under Chapter 14. See Retzlaff, 94 S.W.3d at 655. We
overrule point five.
Chapa v. Livingston Page 6 We affirm the trial court’s judgment.
FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed August 25, 2010 [CV06]
* (Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
Chapa v. Livingston Page 7