Zachary Tyler Smith v. Tdcj-Cid ( 2006 )

NUMBER 13-05-637-CV COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ZACHARY TYLER SMITH, Appellant,

v.

TDCJ-CID, Appellee.

On appeal from the 36th District Court of Bee County, Texas

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Garza

   Appellant, Zachary Tyler Smith, proceeding pro se and in forma pauperis, filed a lawsuit against the Texas Department of Criminal Justice-Correctional Institutional Division (the "Department") complaining of the outcome of a disciplinary proceeding that resulted from a routine cell search. By one issue, appellant contends the trial court erred in granting the Department's plea to the jurisdiction. Finding no abuse of discretion, we affirm. ⁽¹⁾

I. Background

Appellant was charged with a prison disciplinary action. ⁽²⁾ After exhausting his administrative remedies challenging the finding of guilt, appellant sought judicial review of the decision of the administrative agency or body to uphold its guilt finding. See Tex. Gov't Code Ann. § 501.008 (Vernon 2003). At the hearing on the Department's plea to the jurisdiction, the Department argued that appellant was trying to attack a conviction that he received as a result of a disciplinary case, which could only be accomplished through a habeas corpus proceeding as opposed to a civil lawsuit brought under Title 42 U.S.C., section 1983. ⁽³⁾ In response, appellant attempted to explain that the proceeding he initiated was not a lawsuit under section 1983 and that he utilized the grievance procedure in regards to an appeal and got no results. At the conclusion of the hearing, the trial court concluded that because appellant stated he disagreed with the Department's interpretation of "possession" and he wanted the disciplinary action taken off his record because it would affect his ability to ask for his "line time status as a privilege," appellant's recourse would be by habeas corpus.

Although appellant alleges that he has an inherent right of appeal from the action of an administrative agency, he is, in fact, seeking relief from a disciplinary finding which is a challenge to the fact and duration of his custody. ⁽⁴⁾

If a prisoner challenges a "single allegedly defective hearing," he attacks, in essence, the fact and duration of his custody. Whatever the nature of the relief he seeks for an isolated violation, the prisoner must resort to habeas corpus and exhaust state remedies. On the other hand, we have suggested that "a broad due process challenge" to a prison disciplinary system would represent a challenge to conditions of confinement, for which a civil rights remedy would be available.

Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983) (citations omitted). It is well settled that if an inmate wishes to challenge a disciplinary conviction or punishment that he receives while he is incarcerated, as in this case, he must file a habeas corpus action in federal court. See id.; see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that the sole remedy in federal court for a prisoner seeking restoration of good-time credit is a writ of habeas corpus); Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim. App. 1986) (en banc) (concluding state courts will not entertain state habeas actions challenging violations of prison disciplinary procedures). We, therefore, conclude appellant did not file his claim in the correct court, and thus the claim has no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(2) (Vernon 2002). ⁽⁵⁾ Since there is no viable claim, we conclude the trial court did not abuse its discretion when it dismissed appellant's claim. See id. § 14.003(b). Accordingly, we overrule appellant's issue on appeal.

The judgment of the trial court is affirmed.

________________________ DORI CONTRERAS GARZA,

JUSTICE

   Memorandum Opinion delivered and

filed this the 17th_day of August, 2006.

1. See Jackson v. Tex. Dep't of Crim. Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex. App.-Corpus Christi 2000, pet. denied) (providing that the proper standard of review for the dismissal of a frivolous claim pursuant to chapter fourteen is an abuse of discretion).

2. As a result of the disciplinary action, appellant received a reprimand which caused him to lose his phone privileges for ninety days and his right to participate in craft shop for six months. Appellant's loss of privileges occurred in 2004.

3. In addition, the Department argued that appellant could not bring a suit against it under Title 42 U.S.C., section 1983 because it is not a "person" as contemplated by section 1983. See Retzlaff v. Tex. Dep't of Crim. Justice, 135 S.W.3d 731, 744 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (citing Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 461 (Tex. App.-Tyler 1999, pet. denied) (stating the Department is not a "person" who can be sued under section 1983)). Given the disposition of this appeal, we need not address this argument. See Tex. R. App. P. 47.1.

4. Appellant's petition states "[t]he Agents [sic] [of the Department] decision is contrary to applicable law, as a result the Petitioner's constitutional right's have been adversely affected" and "[t]he Agents [sic] [of the Department] final decision on what constitutes possession is wrong."

5. We note that appellant argues that his claims do not implicate due process concerns and thus cannot be raised inappropriately by way of habeas corpus. He states that a loss of non-custodial privileges, such as commissary, does not implicate due process concerns. While loss of phone use and art privileges are arguably not a protected interest that raise due process concerns, appellant is really challenging the hearing through which he was found guilty, and thus he must file a habeas corpus action in federal court. See Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983) (citations omitted).