text:
    Victor URANGA, Appellant, v. The TEXAS WORKFORCE COMMISSION and Nationwide Mutual Insurance Company, Appellees.
    No. 08-08-00048-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.

      Victor Uranga, El Paso, pro se.
    Scott D. Simmons, Austin, for Appellant.
    Darrick G. Parker, Dallas, for Appellee.
    Before CHEW, C.J., McCLURE, J., and MACIAS, Judge, sitting by assignment.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Victor Uranga, pro se, appeals from a summary judgment granted in favor of the Texas Workforce Commission and Nationwide Mutual Insurance Company. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Victor Uranga was employed by Nationwide Mutual Insurance in El Paso, Texas, as a Financed Agent from January 6, 2003 until November 8, 2005. According to Nationwide, a Financed Agent is an employee-agent who builds an insurance agency to the point where the agency is financially self-supporting, at which time the Financed Agent becomes an independent contractor. Uranga’s duties included managing staff,- acquiring new policy holders, and servicing existing policyholders. In June 2005, Uranga’s manager, Sanford Scott, met with Uranga to address his poor job performance. Despite that meeting, Uranga continued to under-perform over the course of the next two months. Scott set up meetings with Uranga on three different dates in September and October, but Uranga either asked to reschedule or did not appear. When Uranga did not attend the third meeting, Scott left a voice mail instructing Uranga to call him immediately. Uranga failed to return the call. Through further investigation, Scott learned that Uranga had been absent from the office for most of August and September and that he had removed computer equipment and all of his personal belongings from the El Paso office. Scott concluded that Uranga had abandoned his position of employment with Nationwide. On November 7, 2005, Scott wrote a letter to Uranga informing him that Nationwide considered his employment to have ended.

Uranga filed a claim for unemployment benefits. TWC determined that Uranga was disqualified under Section 207.045 of the Texas Labor Code because he had voluntarily resigned his employment without good cause connected with the work. Uranga appealed but the Texas Workforce Commission Appeal Tribunal affirmed the decision denying Uranga unemployment benefits on the ground he was disqualified. Uranga appealed again but TWC affirmed the Appeal Tribunal’s decision. Uranga then filed suit in district court against TWC and Nationwide seeking judicial review of TWC’s decision.

TWC and Nationwide filed a joint motion for summary judgment urging that the case is limited to a substantial evidence review and there was more than a scintilla of evidence supporting TWC’s decision. Uranga filed a response and attached evidence, but the trial court sustained Nationwide’s objections to a compact disc (Exhibit A) and excluded it from consideration. The trial court granted the joint motion for summary judgment and this appeal follows.

DENIAL OF TRIAL DE NOVO

In his first issue, Uranga contends that the trial court denied him a trial de novo because it failed to make a full and fair determination of the TWC decision and his Fair Labor Standards Act claims.

Fair Labor Standards Act Claims

We will first address Uranga’s argument that the trial court denied him a trial on his Fair Labor Standards Act claims. The record does not support his assertion that he has made an independent claim under FLSA. The TWC’s decision shows that Uranga argued that he resigned with good cause because he had been required to work overtime without compensation, but there is nothing to indicate Uranga ever presented an independent claim under FLSA. Uranga’s pleadings in the trial court are limited to seeking judicial review of TWC’s decision on his unemployment benefits. The only relief he sought was a determination that TWC’s decision was erroneous and a finding he was entitled to unemployment benefits. The first part of Uranga’s argument is without merit. We turn now to review the propriety of the summary judgment granted in favor of Nationwide and TWC.

Substantial Evidence Review

The trial court reviews a TWC decision regarding benefit payments de novo to determine whether there is substantial evidence to support that decision. Tex.Lab.Code Ann. § 212.202(a) (Vernon 2006); Collingsworth General Hospital v. Hunnicutt, 988 S.W.2d 706, 708 (Tex.1998). TWC’s ruling carries a presumption of validity, and the party seeking to set aside the decision has the burden to show that it was not supported by substantial evidence. Collingsworth General Hospital, 988 S.W.2d at 708. Under the substantial evidence standard of review, the issue is whether the evidence introduced before the trial court shows facts in existence at the time of TWC’s decision that reasonably support the decision. Id. The reviewing court may not set aside a TWC decision merely because it would reach a different conclusion. Id. It may do so only if it finds that TWC’s decision was made without regard to the law or the facts and therefore was unreasonable, arbitrary, or capricious. Id.

Whether TWC’s decision is supported by substantial evidence is strictly a question of law. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986). Substantial evidence is more than a mere scintilla of evidence but less than a preponderance of evidence. City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Consequently, the evidence may preponderate against TWC’s decision but still amount to substantial evidence. Id.

Summary Judgment Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). We review all summary judgments de novo. Valence Operating Company v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The standard for reviewing a traditional summary judgment is well established: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

Substantial Evidence Supports TWC’s Decision as a Matter of Law

The issue before us is whether the summary judgment evidence established as a matter of law that substantial evidence existed to support TWC’s decision. Nationwide and TWC attached to their motion for summary judgment the affidavit of Sanford Scott and TWC’s written decision.

Scott’s affidavit established that Uranga had been employed by Nationwide from January of 2003 to November 2005. As an agent, Uranga would have a full day but he was able to set his own office hours. Ur-anga was aware at the time he was hired of the job responsibilities and the required time commitment. When Uranga’s job performance became a problem, Scott met with him to discuss the deficiencies in his operation. Uranga’s job performance did not improve and Scott attempted to meet with him again, but Uranga did not attend the scheduled meetings. Scott subsequently discovered that Uranga had been absent from the office for most of the two previous months and he had removed computer equipment and personal belongings. Scott determined Uranga had abandoned his employment and wrote Uranga a letter notifying him that Nationwide considered his employment at an end.

TWC determined that Uranga was disqualified from receiving unemployment benefits pursuant to Section 207.045(a) of the Texas Labor Code because he voluntarily resigned without good cause connected with his work. See Tex. Labor Code Ann. § 207.045(a)(Vernon 2006). TWC defined good cause in its written decision as follows:

Good cause connected with the work for leaving, as that term is used in the law of unemployment insurance, means that cause, related to work, as would induce a person who is genuinely interested in retaining work to nevertheless leave the job.

Uranga maintains, as he did before TWC, that he resigned for good cause on three grounds. First, Uranga claimed he had been required to work overtime without being paid time-and-a-half. TWC found that while Uranga was required to work excessively long hours, he acquiesced in this requirement by working under those conditions from the inception of his employment. TWC’s finding is supported by Scott’s affidavit. According to TWC, if a claimant works under objectionable conditions for a prolonged time, this weighs against a finding that the eventual resignation was for good cause. Second, Uranga argued that he resigned because he believed he was about to be laid off. TWC rejected this argument because Uranga had not received any affirmative, definite notice from the employer that his separation from employment was imminent. TWC’s finding is supported by Scott’s affidavit. TWC cited precedent holding that leaving a job when work is still available, even when definite notice of layoff was given, is considered to be a voluntary resignation without good cause. Finally, Ur-anga alleged that his supervisor had acted in bad faith to create a record to justify his eventual discharge. TWC found the evidence on this point was too speculative to support a finding of good cause.

Uranga presented two pieces of evidence with his summary judgment response, namely, the purported transcript of the TWC proceedings, which the trial court excluded, and the affidavit of his supervisor, Sanford Scott. Scott’s affidavit shows that Uranga resigned but it does not provide any support for TJranga’s arguments that he resigned for good cause nor does it show that TWC’s decision was not supported substantial evidence. Because we conclude that the trial court properly granted summary judgment in favor of TWC and Nationwide, we overrule Issue One.

EXCLUSION OF SUMMARY JUDGMENT EVIDENCE

In Issue Two, Uranga complains that the trial court erred by excluding a purported transcript of the TWC hearing. Both TWC and Nationwide respond that Uranga has waived his complaint because the excluded evidence has not been brought forward on appeal. We agree. Although Texas Rule of Appellate Procedure 35.3(a) places the burden to timely prepare, file, and certify the clerk’s record on the trial court clerk, the appellant bears the burden to bring forward an appellate record that enables us to determine whether the appellant’s complaints constitute reversible error. Crown Asset Management, LLC v. Dunavin, No. 05-07-01367-CV, 2009 WL 2837754 (Tex.App.-Dallas September 4, 2009, no pet.); see W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 37 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (noting that historically, burden falls on appellant to see that sufficient record is presented showing reversible error). Because the evidence has not been included in the record, we are unable to review Appellant’s complaint. We overrule Issue Two and affirm the judgment of the trial court below.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    James Lee SWEED, Appellant, v. Jay L. NYE and Texas Equal Access to Justice Foundation, Appellee.
    No. 08-08-00095-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Rehearing Overruled March 24, 2010.

      James Lee Sweed, El Paso, pro se.
    Jay Nye, El Paso, pro se.
    Demetri Anastasiadis, Assistant Attorney General, Austin, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

James Lee Sweed, pro se, appeals a dismissal order declaring him a vexatious litigant and requiring that he post security as a precondition to any further litigation. Sweed brings four issues for review. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Construing his pleadings broadly, Sweed filed suit for conversion on May 14, 2007, naming attorney Jay L. Nye and the Texas Equal Access to Justice Foundation (TEAJF) as defendants. He alleged that in April 2005, Nye improperly converted Sweed’s personal funds and that Sweed was entitled to both the principal and interest pursuant to Article 1, Section 17 of the Texas Constitution and the Fifth Amendment of the United States Constitution. He further alleged that TEAJF “took” the earned interest for public use without compensating him.

Although Nye now practices with the office of the El Paso Public Defender, at the time of the events in issue, he represented Sweed in a personal injury lawsuit against El Paso County. Nye settled the lawsuit for $5,000 and deposited the proceeds in his interest-bearing IOLTA trust account since Sweed was incarcerated. No funds were disbursed until Sweed was released from prison. In his answer, Nye alleged that the only money he had withdrawn for his own benefit was his one-third contingent fee. In September 2005, Sweed filed a grievance and the State Bar Grievance Committee summarily dismissed the complaint.

PROCEDURAL SUMMARY

In his petition, Sweed alleged that TEAJF “may be served with process by serving the Attorneys General.” Service of process was attempted by certified mad upon the Office of the Attorney General. A return receipt, signed only by the district clerk, was placed in the court file. Subsequently, the Attorney General filed an “Advisory to the Court of Absence of Jurisdiction” in which it articulated that TEAJF was a state agency such that citation must be served on the Secretary of State or upon the administrative head of the governmental unit being sued as required by Section 101.102(c) of the Texas Civil Practice and Remedies Code.

Sweed filed his “First Motion for Summary Judgment” arguing that service upon the Attorney General was adequate service of process upon TEAJF. Nye filed a motion for summary judgment predicated on the statute of limitations and a motion to declare Sweed a vexatious litigant.

On October 3, 2007, the court conducted a hearing on all of these motions. The court declined to address Nye’s motion for summary judgment concerning the statute of limitations; it denied Sweed’s motion for summary judgment; it took judicial notice that the Attorney General was not the proper party for service of process upon TEAJF; it found that TEAJF had not been served with process; and it found that Sweed is a vexatious litigant. On February 20, 2008, the court dismissed the lawsuit with prejudice, declaring Sweed a vexatious litigant and requiring security of $5,000 as a precondition to any further litigation. This appeal follows.

VEXATIOUS LITIGANT

In his first issue, Sweed complains that the trial court abused its discretion by finding him to be a vexatious litigant. We review the trial court’s determination for an abuse of discretion. Harris v. Rose, 204 S.W.3d 903, 906 (Tex.App.-Dallas 2006, no pet.). Under that standard, we are not free to substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court abuses its discretion if it acts in an arbitrary or capricious manner without reference to any guiding rules or principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Chapter 11 of the Texas Civil Practice and Remedies Code provides a mechanism to restrict frivolous and vexatious litigation. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.051-.057 (Vernon 2002); Harris v. Rose, 204 S.W.3d 903, 905 (Tex.App.-Dallas 2006, no pet.). This legislation sought to strike a balance between Texans’ rights of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit. Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 804 (Tex.App.-Dallas 2006, pet. denied). A defendant may seek a court order determining that the plaintiff is a vexatious litigant and requiring the plaintiff to furnish security for the benefit of the moving defendant. Tex. Civ. Prau & Rem.Code Ann. § 11.051. A court may find a plaintiff to be a vexatious litigant if the defendant demonstrates that there is- a reasonable probability that the plaintiff will not prevail in the litigation and

(1) the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been:
(A) finally determined adversely to the plaintiff;
(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;
(2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either:
(A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or
(B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or
(3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or proceeding based on the same or substantially similar facts, transition [sic], or occurrence.

Id. § 11.054. If the trial court determines that the plaintiff is a vexatious litigant, it must order the plaintiff to furnish security and determine the date by which security must be posted. Id. § 11.055(a), (b). If the plaintiff does not post security by the deadline, the trial court must dismiss the litigation as to the moving defendant. Id. § 11.058; see also Gant v. Grand Prairie Ford, L.P., No. 02-06-00386-CV, 2007 WL 2067753, at *4 (Tex.App.-Fort Worth July 19, 2007, pet. denied) (mem. op.)(after trial court declared plaintiff a vexatious litigant, trial court had duty as a matter of statutory law to dismiss plaintiffs lawsuit after plaintiff failed to furnish required security within time ordered).

The record reveals that Nye presented sufficient evidence to satisfy the statutory requirements. During the hearing, Nye testified that he and Sweed entered into a contract providing for a one-third contingent fee. He tendered evidence indicating exactly how much he received, exactly how much was paid out, and exactly how much Sweed received. Nye also presented a complete accounting of the monies, including an additional $95 that he paid to Sweed in order to settle the dispute while it was still at the grievance level. Based upon this evidence, Nye established that there was a reasonable probability that Sweed would not prevail in the litigation. Tex. Civ. Prac. & Rem.Code Ann. § 11.054.

Additionally, Nye introduced the official record keeping of the Able Term Sessions (JIMS) showing that Sweed has filed seventeen lawsuits since 1993. The seven-year statutory window extends from the date Nye filed his motion back to 2000. Since 2000, Sweed filed lawsuits bearing cause numbers 2000-4238, 2002-5576, 2003-862, 2003-5364, 2005-5667, and the present lawsuit 2007-2271. All of the lawsuits have been disposed by dismissal, by summary judgment, or for want of prosecution. Nye described the lawsuits for the trial court:

Just briefly, as the Court can see from examination, he has sued me, he has sued the City of El Paso, he has sued the Sheriffs Department, he’s sued the court reporters, he’s sued the 210th District Court, he’s sued the District Attorney’s Office, he’s sued court administration, County Court 4, he sued Judge Kitty Schild, the District Clerk, again the Sheriff, the jail, Mr. Ryden [ph], I don’t know who that was, the jail, the medical department from the jail, the doctor from the jail, the food service from the jail. Again, in another lawsuit, the jail, the jail personnel, the licensed vocational nurse from the jail.
Judge, he has sued in another case Judge Sam Paxson, Mayor Francis, Judge Chuck Mattox of El Paso County. In another lawsuit, the Sheriff, the jail medical facility, again, El Paso County. Another lawsuit, the jail, the Sheriff, Judge Chacon. And then, of course, the lawsuit that started this whole thing back in ’93, which was settled. In addition to that he has filed grievances against me, several.

In its written order, the trial court found that Sweed’s pleadings were signed in violation of Section 9.011 of the Civil Practices and Remedies Code in that they were groundless, brought in bad faith, and for the purpose of harassment. With regard to Chapter 10 of the Code, the trial court found that the pleadings were filed for improper purposes, including harassment, and that none of the allegations or factual contentions had any evidentiary support. As to Chapter 11, the court found that there was no reasonable probability that Sweed would prevail in the litigation, that he is a vexatious litigant who has filed multiple lawsuits against Nye and others, in excess of five lawsuits and grievances other than small claims in the seven year period immediately preceding the date that Nye filed his motion, all of which were determined adversely to Sweed and which Sweed has repeatedly re-litigated or attempted to re-litigate against the same defendant. Because the record dearly establishes that the trial court did not abuse its discretion in ruling Sweed to be a vexatious litigant, we overrule Issue One.

STATUTE OF LIMITATIONS

In Point of Error Two, Sweed contends that the trial court abused its discretion by finding that his lawsuit was hot timely filed within two years of the incident giving rise to the claim. Nye affirmatively pled a limitations defense and sought summary judgment on that basis. But the trial court expressly refused to rule on Nye’s motion for summary judgment. We overrule Issue Two.

SERVICE UPON TEAJF

In his third issue, Sweed complains that the trial court abused its discretion by finding his that his petition was not properly served on TEAJF. As we have noted, Sweed requested service upon the Attorney General Office of the State of Texas. Sweed argues that because the Attorney General is charged with representing the State and its agencies in all civil litigation, his office has the authority to accept service of process. In support of this argument, he directs us to Sections 104.004 and 104.005 of the Texas Civil Practice and Remedies Code. Section 101.102(c) provides that citations must be served as in other civil eases unless no method of service is provided by law, in which case service may be on the administrative head of the governmental unit being served. The Texas Attorney General has not been statutorily or constitutionally designated the administrative head of TEAJF. Article 4, Section 22, Texas Constitution; Tex. Gov’t Code Ann. § 402.021 (Subchapter B. Duties of the Attorney General). Additionally, Section 30.004 requires more:

(a) This section applies to a civil case in which:
(1) the state is named as a party;
(2) an agency in the executive or legislative department is named as a party; or
(3) a party may be represented by the attorney general as authorized by Chapter 104.
(b) On the filing of any petition in a case subject to this section, a copy of the petition shall be mailed to the attorney at the attorney general’s office in Austin, Texas, by United States Postal Service certified mail, return receipt requested.
(c) Mailing notice as required by Subsection (b) does not satisfy any other jurisdictional requirement relating to service of process on a state officer, board, commission, agency, or institution that is a named party in a court proceeding. [Emphasis added].
(d) Failure to give notice in a case in which notice is required by Subsection (b) results in any default judgment in the case being set aside without costs.

Tex. Civ. Prac. & Rem.Code ANN. § 30.004 (Vernon 2009). No agent or employee of TEAJF was served with process or entered an appearance before the district court. We overrule Issue Three.

LACK OF JURISDICTION

Finally, Sweed argues that the trial court abused its discretion by finding that the trial court lacked jurisdiction. From his brief, it appears that Sweed has construed the trial court’s order as finding a lack of subject matter jurisdiction. He directs us to State v. Meyer, 403 S.W.2d 366 (Tex.1966), a condemnation case in which damages were awarded. The only relevance we can discern is a “takings” reference found in one sentence of Sweed’s argument, “and under the Texas Supreme Court holding in State vs. Meyer [citation deleted] the trial court have [sic] jurisdiction over this plaintiff conversion of personal property claim.” Certainly the trial court had subject matter jurisdiction of the conversion claim and it did not rule otherwise. The court did find during the hearing that TEAJF had not been served with process — a requirement of personal jurisdiction — but that was not the basis for the dismissal. The written order contains the following language:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this lawsuit brought by Plaintiff is deemed a frivolous lawsuit and therefore shall be and is hereby dismissed with prejudice pursuant to Sections 9 and 10 of the Texas Civil Practice and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure.
* ⅜ * # 5[« *
The Court therefore orders that Plaintiff SWEED pay into the registry of the court the amount of five thousand dollars ($5,000.00) within ten (10) days of the date of this order as security for the benefit of Defendant NYE.... Failure to deposit said security is additional grounds for the dismissal of the suit.

Sweed did not, and has not, posted security. We overrule Issue Four. Having overruled all issues for review, we affirm the judgment of the court below.


text:
    In the Matter of the Expunction of S.S.A.
    No. 08-08-00293-CV.
    Court of Appeals of Texas, El Paso.
    March 2, 2010.

      Ralph E. Girvin, Assistant County Attorney, El Paso, TX, for appellant, County of El Paso.

      G. Daniel Mena, Attorney at Law, El Paso, TX, for appellee, S.S.A.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

S.S.A. filed a petition for expunction of an arrest for the offense of sexual assault of a child. The trial court granted the petition, finding that the arrest was due to a mistake in fact, vitiating probable cause. The County of El Paso has appealed. We reverse and render judgment denying the petition for expunction.

EXPUNCTION OF RECORDS

In the County’s sole point of error, it argues that the trial court abused its discretion in granting the expunction because S.S.A. presented no evidence of the statutory requirements. Tex.Code Crim.Proc. Ann. art. 55.01(a)(2)(A)(i)(Vernon 2006).

Standard of Review

Article 55.01 of the Texas Code of Criminal Procedure controls the right of a person who has been placed under arrest for either a felony or misdemeanor to have all records and files relating to the arrest expunged. Tex.Code Crim.Proc.Ann. art. 55.01(a). A statutory expunction proceeding is -civil rather than criminal in nature, and the burden of proving compliance with the statutory conditions rests with the petitioner. Collin County Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex.App.-Dallas 2005, no pet.). Because the statute requires strict compliance, courts have no equitable power to expunge criminal records. Id.

We review a trial court’s ruling on a petition for expunction under an abuse of discretion standard. Ex parte Jackson, 132 S.W.3d 713, 715 (Tex.App.-Dallas 2004, no pet.); see also Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 888-39 (Tex.2004); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002). We may not substitute our judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court’s discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992).

Statutory Constmetion of Article 55.01

Our primary objective in statutory construction is to give effect to the Legislature’s intent. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009)(op. on reh’g), citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 SW.3d 621, 625-26 (Tex.2008), citing Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004); Taylor v. Firemen’s and Po licemen’s Civil Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex.1981); University of Tex. S. W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex.2004); see Entergy Gulf States, 282 S.W.3d at 437 (“This general rule [that text is determinative of legislative intent] applies unless enforcing the plain language of the statute as written would produce absurd results;” also recognizing that legislative definitions of terms control over their ordinary meaning); Tex.Gov’t Code ANN. § 311.011 (Vernon 2005)(“[w]ordS and phrases shall be read in context and construed according to the rules of grammar and common usage”). We should also read every word, phrase, and expression in a statute as if it were deliberately chosen, and likewise presume that words excluded from the statute are done so purposefully. See Gables Realty Ltd. P’ship v. Travis Central Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). Our analysis of the statutory text is also informed by the presumptions that “the entire statute is intended to be effective” and that “a just and reasonable result is intended,” Tex. Gov’t Code Ann. § 311.021(2) & (3), and consideration of such matters as “the object sought to be attained,” “circumstances under which the statute was enacted,” legislative history, and. “consequences of a particular construction.” Id. § 311.023(1), (2), (3), (5). However, only when the statutory text is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’ ” Entergy Gulf States, 282 S.W.3d at 437, quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007).

The Statute

Art. 55.01. Right to Expunction

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void. [Emphasis added].

Tex.Code CRIm.Proc.ANN. art. 55.01 (a)(2)(A)(i), (ii)(Vernon’s Supp. 2008). We interpret paragraph (A) to be currently organized into:

(1) a main paragraph containing two alternatives, separated by the disjunctive ‘or’ — ‘an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed’;
(2) two subparagraphs within paragraph (A) that are also alternatives, separated by the disjunctive ‘or’ — ‘(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or (ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void’;
(3) with the two sets of alternatives linked by the conjunction ‘and.’

See Tex.Code CrimPROcAnn. art. 55.01(a)(2)(A); T.C.R. v. Bell County District Attorney’s Office, 2009 WL 3319922, at *6, 7 (Tex.App -Austin 2009, no pet.)(not designated for publication).

Analysis

S.S.A. was arrested on February 12, 2008 and was charged with sexual assault of a child. The case was presented to the district attorney’s office in El Paso and it was declined. The record does not show that an indictment or information charging S.S.A. with commission of a felony was presented against him for the offense arising out of his arrest. Therefore, under Article 55.01(a)(2)(A)(i), he must show that the limitations period expired before the date on which a petition for expunction was filed under Article 55.02. See Tex.Code CrimProCAnn. art. 55.01(a)(2)(A)(i). But the offense for which S.S.A. was arrested has no statute of limitations. See id. art. 12.01(l)(B)(Vemon Supp. 2009)(providing sexual assault under Section 22.011(a)(2) of the Texas Penal Code has no limitations period). Because there is no limitations period applicable to the offense for which he was arrested, S.S.A. cannot satisfy at least one of the statutory requirements for obtaining an expunction. See id. art. 55.01(a)(2)(A)(i).

We understand that the Legislature wants to prohibit expunction when there is no limitations period and the defendant could theoretically be prosecuted at any time in the future. But in a case where the Státe has declined to prosecute the case and the trial court has found that the child victim lied about her age, there is very little chance the State will change its mind and prosecute. We believe this is an unfair application of the statute in this case. Perhaps the Legislature should amend the statute so that a defendant in these circumstances can also get his arrest record expunged when the State has declined the case and the trial court finds that the defendant was arrested because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the arrest.

CONCLUSION

Because the statute requires strict compliance, we must conclude that the trial court abused its discretion in granting the petition. We reverse and render judgment denying S.S.A.’s petition for expunction.

      . Section 22.011(a)(2)(A) of the Texas Penal Code states that a person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means.


author: SUE WALKER, Justice.

text:
    Jim H. HAMILTON, Jr., Appellant, v. Emil J. PECHACEK, Appellee.
    No. 2-09-115-CV.
    Court of Appeals of Texas, Fort Worth.
    March 11, 2010.

      Jim H. Hamilton, Jr., Iowa Park, TX, pro se.
    Greg Abbott, Attorney General, David A. Talbot, Jr., Attorney General, Chief, Law Enforcement Defense Division, C. Andrew Webber, First Asst. Attorney General, David S. Morales, Deputy Attorney General for Litigation, Harold Liller, Assistant Attorney General, Austin, TX, for Appellee.
    PANEL: LIVINGSTON, WALKER, and MEIER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Jim H. Hamilton, Jr., an inmate proceeding pro se and in forma pau-peris, challenges the trial court’s order dismissing his lawsuit against Appellee Emil J. Pechacek. In five points, Hamilton asserts that the trial court erred by dismissing his suit with prejudice under chapter 14 of the Texas Civil Practice and Remedies Code without conducting a hearing on Pechacek’s motion to dismiss or on Hamilton’s motion for new trial. We will affirm in part and reverse and remand in part.

II. Factual and ProCedural Background

Hamilton is an inmate housed in the Texas Department of Criminal Justice’s (TDCJ) James Allred unit in Wichita County, Texas. Pechacek is an employee of the TDCJ and a correctional officer at the Allred unit. Hamilton alleges that on January 9, 2008, Pechacek caused a cup of hot coffee to be spilled on him and his personal property. Hamilton specifically alleges that Pechacek intentionally or negligently grabbed a coat that had legal papers and a cup of “extremely hot” coffee on top of it, threw the coat, and thus caused the cup of coffee “to make contact with ... Hamilton’s chest and stomach area” and his legal papers. Hamilton further alleges that Pechacek’s actions caused first-degree burns on Hamilton’s chest and stomach and the destruction of legal papers valued at $166.

Hamilton filed a TDCJ grievance against Pechacek, which was denied. Hamilton then filed suit against Pechacek in district court claiming that Pechacek assaulted him and violated his rights under the Texas constitution, Texas Penal Code, Texas Government Code, and TDCJ’s rules, policies, and procedures. Hamilton also requested an eight-point injunction prohibiting Pechacek from assaulting him or otherwise violating his rights. Although Hamilton’s original petition does not expressly allege violations of Hamilton’s rights under the United States Constitution, it may be liberally construed as asserting violations of his federal rights under 42 U.S.C. § 1983.

Pechacek answered and moved to dismiss Hamilton’s lawsuit under chapter 14 of the Texas Civil Practice and Remedies Code. Chapter 14 sets out special procedural rules that apply to an. inmate lawsuit in which the inmate files an affidavit or unsworn declaration of inability to pay costs, except for suits brought under the family code. Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001-.014 (Vernon 2002). Pe-chacek specifically asserted that the majority of Hamilton’s claims should be dismissed as frivolous and that all of his claims should be dismissed because Hamilton did not comply with chapter 14’s requirement that he file a copy of the TDCJ’s written grievance decision.

Hamilton filed a verified objection to Pechacek’s motion to dismiss and a “Motion for Bench Warrant or In the Alternative Motion for Hearing by Conference Call.” The trial court set Pechacek’s motion to dismiss for hearing by submission only and ultimately granted the motion without conducting an oral or evidentiary hearing. The trial court entered a final judgment dismissing all of Hamilton’s claims “on the merits” as frivolous for failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code. Hamilton filed a motion for new trial. The trial court denied the motion for new trial without conducting an evidentiary hearing, and this appeal followed.

III. Motion for New Trial

In his lust point, Hamilton argues that the trial court erred by failing to conduct an evidentiary hearing on his motion for new trial because his verified motion raises controverted matters that are not determinable from the record.

We review a trial court’s denial of a motion for new trial for an abuse of discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex.1987). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 885, 838-39 (Tex.2004).

Whether to hold an evidentiary hearing on a motion for new trial in a civil matter is within the trial court’s discretion unless the ground for the motion is jury misconduct. See Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex.App.-Fort Worth 2009, no pet.); Parham v. Wilbon, 746 S.W.2d 347, 351 (Tex.App.-Fort Worth 1988, no writ); see also Tex.R. Civ. P. 327 (providing that, when the ground of a motion for new trial, supported by affidavit, is misconduct of the jury, “the court shall hear evidence thereof from the jury or others in open court”).

In this case, the allegation of jury misconduct does not apply because no jury trial was held. Moreover, even if we were to adopt the standard applied by other courts of appeals — that a trial court must hold a hearing on a motion for new trial if the motion “presents a question of fact upon which evidence must be heard” and alleges facts that, if true, would entitle the movant to a new trial — Hamilton would not be entitled to an evidentiary hearing

on his motion for new trial because it failed to identify any question of fact upon which additional evidence was required or to specify what evidence, if any, he would have presented to the trial court had an evidentiary hearing been held. See, e.g., Landis v. Landis, 307 S.W.3d 393, 394 (Tex.App.-San Antonio 2009, no pet.) (“A trial court is only required to conduct a hearing on a motion for new trial when a motion presents a question of fact upon which evidence must be heard.”). Accordingly, the trial court did not abuse its discretion by failing to conduct an eviden-tiary hearing on Hamilton’s motion for new trial. We overrule Hamilton’s first point.

IV. Right to Attend a Hearing on a Chapter 14 Motion to Dismiss In his third point, Hamilton argues that the trial court erred by denying his constitutional right to be heard on Pechacek’s chapter 14 motion to dismiss because the court failed to consider and rule upon his motion for a bench warrant to personally appear at a hearing or, in the alternative, to participate by conference call. The trial court did not conduct an oral or evidentia-ry hearing but heard Pechacek’s motion to dismiss by submission only.

A. Standard of Review

We review for an abuse of discretion a trial court’s ruling on a request for a bench warrant or to participate at trial by other means. In re Z.L.T., 124 S.W.3d 163, 165 (Tex.2003); In re D.D.J., 136 S.W.3d 305, 311-14 (Tex.App.-Fort Worth 2004, no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Cire, 134 S.W.3d 835 at 838-39. When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002).

B. Bench Warrant or Appearance at Hearing by Conference Call

Litigants cannot be denied access to the courts simply because they are inmates. Z.L.T., 124 S.W.3d at 165; Ringer v. Kimball, 274 S.W.3d 865, 867 (Tex.App.-Fort Worth 2008, no pet.). However, an inmate does not have an automatic right to appear in person in every court proceeding. Z.L.T., 124 S.W.3d at 165; D.D.J., 136 S.W.3d at 311. “The right of a prisoner to have access to the courts entails not so much his personal presence as the opportunity to present evidence or contradict the evidence of the opposing party.” D.D.J., 136 S.W.3d at 314.

In this case, the trial court heard Pechacek’s motion to dismiss by submission only, implicitly denying Hamilton’s request for a bench warrant or, alternatively, to appear at hearing by conference call. Section 14.003(c) of the civil practice and remedies code provides that a hearing on a chapter 14 motion to dismiss is not manda-tary, stating: Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002) (emphasis added). The plain language of the statute indicates that the trial court’s determination to hold a hearing on a chapter 14 motion to dismiss is discretionary. See id. Thus, an inmate bringing a claim subject to chapter 14 has no right to be heard at a hearing upon a motion to dismiss his or her claims. See Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex.App.-Fort Worth 1997, pet. denied) (holding that a trial court’s determination whether to hold a hearing on a chapter 14 motion to dismiss is discretionary).

In determining whether [to dismiss a suit under section 14.003], the court may hold a hearing. The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court.

Based on section 14.003(c), it was within the trial court’s discretion to hear Pecha-cek’s motion to dismiss by submission only, without conducting an oral or evidentiary hearing. Hamilton had the opportunity to oppose Pechacek’s motion to dismiss and did so by filing verified objections. Moreover, Hamilton does not identify any evidence or argument that he contends he would have presented at the hearing but could not. Hamilton had no need to attend a hearing to present evidence or contradict the evidence of the opposing party because no evidentiary hearing was held. See D.D.J., 136 S.W.3d at 314. Accordingly, we hold that the trial court did not abuse its discretion by failing to conduct an evidentiary hearing or by implicitly denying Hamilton’s request to appear at any hearing personally or by conference call. We overrule Hamilton’s third point.

V. Dismissal Pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code

In his second, fourth, and fifth points, Hamilton complains that the trial court erred by granting Peehacek’s motion to dismiss his claims and his request for in-junctive relief as frivolous under chapter 14 and by dismissing them “on the merits.” For the reasons set forth below, we will sustain the portions of Hamilton’s second, fourth, and fifth points that challenge the dismissal of his common law assault and battery and personal property claims, his section 1983 excessive force claim against Pechacek individually, and the dismissal with prejudice of his section 1983 access to courts claim; we will overrule the balance of Hamilton’s second, fourth, and fifth points.

A. Dismissal Under Chapter 14

The legislature enacted chapter 14 of the Texas Civil Practice and Remedies Code 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. Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.App.Fort Worth 2004, pet. denied); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2001, pet. denied), cert. denied, 537 U.S. 890, 123 S.Ct. 149, 154 L.Ed.2d 154 (2002). Chapter 14 sets forth procedural requirements an inmate must satisfy as a prerequisite to filing suit. Tex. Civ. Prac. & Rem.Code Ann. §§ 14.002, 14.004-.006; see also Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex.App.-San Antonio 2002, pet. denied). Among other requirements, an inmate must file an affidavit or unsworn declaration stating the date that the grievance underlying the lawsuit was filed and the date of the TDCJ’s written decision, along with “a copy of the written decision from the grievance system.” Tex. Civ. Prac. & Rem.Code Ann. § 14.005(a)(l)-(2). Should the inmate fail to comply with these requirements, his suit will be dismissed. Lilly, 100 S.W.3d at 336.

Even if an inmate satisfies the necessary filing requirements, however, the trial court may dismiss an inmate’s claim if it finds the claim to be frivolous or malicious. Tex. Civ. Prac. & Rem.Code Ann. § 14.003; 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 or malicious if it has no basis in law or fact or if its realistic chance of ultimate success is slight. Tex. Civ. Prac. & Rem.Code Ann. § 14.003(b)(l)-(2).

B. Standard of Review

We review a dismissal under chapter 14 for an abuse of discretion. Bishop, 131 S.W.3d at 574. When, as in this case, 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. See Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex.App.-Houston [1st Dist.] 2006, no pet.). 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. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.) (op. on reh’g) (explaining that questions of law are reviewed de novo), cert. denied, 513 U.S. 964, 115 S.Ct. 427, 130 L.Ed.2d 340 (1994). We will affirm the dismissal if it was proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990).

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 of law, the petition stated a cause of action that would authorize relief. See Scott, 209 S.W.3d at 266. A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory. Id. at 266-67.

Here, the trial court dismissed Hamilton’s claims “on the merits” or with prejudice. A dismissal with prejudice operates as if the case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999). Orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex.1992). When reviewing whether the trial court abused its discretion by dismissing claims with prejudice under chapter 14, this court should consider whether the inmate’s error could be remedied with more specific pleading; if so, a dismissal under chapter 14 with prejudice is improper. See Leachman v. Dretke, 261 S.W.3d 297, 306 (Tex.App.-Fort Worth, 2008 no pet.) (op. on reh’g).

C. Dismissal of Hamilton’s Claims Under Section 14.005

In his second point, Hamilton contends that the trial court erred by dismissing his claims for failure to comply with section 14.005 of the civil practice and remedies code. Specifically, Hamilton argues that the trial court erred by dismissing his claims under section 14.005 based upon the incorrect assumption that he failed to file a copy of the TDCJ’s written response to his underlying grievance. See Tex. Civ. Prac. & Rem.Code Ann. § 14.005(a)(2) (requiring inmate to file “a copy of the written decision from the grievance system”).

'A review of the record shows that Hamilton indeed filed the TDCJ’s written Step I and Step II decisions in the grievance relevant to this lawsuit. Moreover, in his briefing before this court, Pechacek acknowledges that Hamilton filed the written Step I and Step II grievance decisions and concedes that Hamilton’s claims are not properly subject to dismissal for failure to comply with section 14.005. Accordingly, we hold that the trial court abused its discretion to the extent that it dismissed Hamilton’s claims as frivolous for alleged failure to comply with section 14.005, and we sustain Hamilton’s second point.

D. Dismissal of Hamilton’s Claims Under Section 14.003(a)(2)

In his fourth point, Hamilton argues that the trial court erred by dismissing his claims as frivolous under section 14.003(a)(2) because they lacked an arguable basis in law or their realistic chance of ultimate success was slight. In response, Pechacek concedes that Hamilton’s common law assault and battery and section 1983 excessive force claims are not frivolous and not subject to dismissal at this time but argues that Hamilton’s remaining claims are subject to dismissal as frivolous.

1. Hamilton’s Assault and Battery Claim

Hamilton brings a common law assault and battery claim. On appeal, Pe-chacek acknowledges that this claim is not frivolous, “not subject to dismissal as lacking basis in law,” and “not presently ripe for dismissal with prejudice under § 14.003(a)(2).” In addition, Pechacek requests that we remand Hamilton’s common law assault and battery claim to the trial court for further proceedings. We agree.

A person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another. Gibbins v. Berlin, 162 S.W.3d 335, 340 (Tex.App.-Fort Worth 2005, no pet.). In his original petition, Hamilton specifically alleges that Pechacek intentionally threw “extremely hot” coffee on him and knew or should have known that his actions would “recklessly cause first degree burns.” Accordingly, we hold that Hamilton’s assault and battery claim does not lack an arguable basis in law and that the trial court abused its discretion by dismissing this claim with prejudice.

2. Hamilton’s 42 U.S.C. § 1983 Excessive Force Claims

Hamilton’s petition brings suit against Pechacek “individually and in his official capacity” and alleges that Pechacek’s actions constituted “excessive use of force” committed “intentionally, ... knowingly,” “arbitrarily], wantonly, and in bad faith.” Accordingly, the petition may be read to include an Eighth Amendment excessive force claim under section 1983. As with Hamilton’s assault and battery claim, Pe-chacek admits on appeal that this claim is not frivolous, “not subject to dismissal as lacking basis in law,” and “not presently ripe for dismissal with prejudice under § 14.003(a)(2).” Pechacek requests that we remand Hamilton’s section 1983 excessive force claim to the trial court for further proceedings.

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. 42 U.S.C.A. § 1983 (2003); Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100, 2103, 138 L.Ed.2d 540 (1997). But Congress did not intend section 1983 to abrogate a state’s sovereign immunity from suit without the state’s consent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-66, 109 S.Ct. 2304, 2308-09, 105 L.Ed.2d 45 (1989) (holding that “a State is not a person within the meaning of § 1983”). Therefore, a state is not a proper party to a section 1983 claim. See Harrison v. Tex. Dept. of Criminal Justice-Institutional Div., 915 S.W.2d 882, 889 (Tex.App.-Houston [1st Dist.] 1995, no pet.). When 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. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex.2001). Accordingly, we hold that the trial court did not abuse its discretion by dismissing with prejudice Hamilton’s section 1983 claim against Pe-chacek to the extent that he was sued in his official capacity.

State officials sued in their individual capacity, however, do not enjoy sovereign immunity from suit and may be sued under section 1983. See, e.g., Hidalgo County v. Gonzalez, 128 S.W.3d 788, 792-93 (Tex.App.-Corpus Christi 2004, no pet.). When an inmate brings an excessive force section 1983 claim against a prison official individually, “the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir.1998) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992)). Hamilton’s original petition alleges that Pecha-cek used excessive force by intentionally, knowingly, arbitrarily, wantonly, and in bad faith causing extremely hot coffee to be spilled on Hamilton’s body. On appeal, Hamilton specifically argues that Pecha-cek’s actions were in bad faith and “not sanctioned by any established state policy,” as demonstrated by the fact that they allegedly violated established TDCJ rules, policies, and procedures. Accordingly, Hamilton has alleged facts to support a section 1983 excessive force claim against Pechacek individually. We hold, therefore, that this claim is not frivolous as a matter of law and that the trial court abused its discretion to the extent it dismissed Hamilton’s section 1983 excessive force claim against Pechacek individually.

3. Hamilton’s Claim Based Solely Upon the Texas Constitution

Hamilton argues that the trial court erred by dismissing his claim based on Texas constitutional violations because it is not based solely on Texas constitutional violations but on common law assault and battery and section 1983 excessive force claims as well. Hamilton also contends that his allegations of Texas constitutional violations support declaratory and injunc-tive relief, not his request for damages.

Hamilton’s original petition seeks damages based on Texas constitutional violations, brings suit against Pecha-cek to “redress the deprivation under color of state law of rights secured by the constitution of the State of Texas,” and requests compensatory and punitive damages. Under the Texas Supreme Court’s decision in City of Beaumont v. Bouillion and its progeny, however, no private cause of action exists against a governmental entity or its officials for money damages relating to alleged violations of Texas constitutional rights. See City of Arlington v. Randall, 301 S.W.3d 896, 906-07 (Tex.App.-Fort Worth 2009, pet. filed) (citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995), and holding that there is no private right of action for damages arising from unconstitutional conduct under Texas constitution’s free speech and free assembly clauses); Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 425 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (op. on reh’g) (holding Bouillion applies to bar private right of action for damages arising from other alleged Texas constitutional violations); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 468-69, 471 (Tex.App.-Fort Worth 1997, writ denied) (op. on reh’g) (holding Bouillion applies to alleged Texas constitutional due process provision violations by individual public officials and governmental entities). Accordingly, we hold that, to the extent Hamilton’s claims for damages are based solely on alleged violations of his Texas constitutional rights, they are frivolous as lacking an arguable basis in law. Moreover, because this claim relies upon an indisputably meritless legal theory, Hamilton cannot remedy this deficiency by amending his pleading. We therefore hold that the trial court did not abuse its discretion by dismissing this claim with prejudice.

4. Hamilton’s Claims Based Upon Alleged Violations of the Texas Penal Code

Hamilton contends that the trial court erred by dismissing his claims based upon Pechacek’s alleged violations of Texas Penal Code sections 22.01 (assault) and 39.03 (official oppression). But the Texas Penal Code does not create a private cause of action. 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, we hold that to the extent Hamilton brings claims based on Pechacek’s alleged assault and official oppression as violations of the penal code, they are frivolous as lacking arguable bases in law. Moreover, the claim relies upon an indisputably meritless legal theory, and Hamilton cannot remedy this deficiency by amending his pleadings. Thus, we hold that the trial court did not abuse its discretion by dismissing these claims with prejudice.

5. Hamilton’s Claims Based Upon Alleged Violations of the Texas Government Code

Hamilton contends the trial court erred by dismissing his claims based upon Pe-chacek’s alleged violations of Texas Government Code sections 501.007 and 501.008. These sections authorize discretionary payments to inmates for the destruction of their property by prison officials (501.007) and require the TDCJ to develop and maintain an administrative system for inmate grievances (501.008). See Tex. Gov’t Code Ann. §§ 501.007-.008 (Vernon 2004). In addition, section 501.008(d) requires that inmates exhaust the government code grievance procedures before initiating a civil suit seeking damages for property destruction. Id. § 501.008; see Spurlock v. Schroedter, 88 S.W.3d 733, 737 (Tex.App.-Corpus Christi 2002, no pet.) (“Clearly, the legislature foresaw that inmates would seek redress in the courts [for destruction to personal property] because section 501.008(d) is the requirement to exhaust the grievance procedures before initiating suit.”). These sections of the government code do not, however, provide an independent basis for an inmate’s civil lawsuit. See, e.g., Spurlock, 88 S.W.3d at 737. We hold that Hamilton’s claims are frivolous because they have no arguable basis in law to the extent that they are based solely on Pecha-cek’s alleged government code violations. Moreover, any such claims rely upon an indisputably meritless legal theory, and Hamilton cannot remedy the deficiency by amending his pleadings. Accordingly, we further hold that the trial court did not abuse its discretion by dismissing any such claim with prejudice.

6.Hamilton’s Common Law Property Claims

Hamilton seeks damages based upon Pechacek’s alleged destruction of “$166 worth of legal documents generated from a pending suit against Asst. Warden Tommy Norwood.” In his original petition, Hamilton specifically alleges that Pe-chacek intentionally caused coffee to be spilled and knew or should have known that the documents would be destroyed as a result; in the alternative, Hamilton alleges that Pechacek’s actions “constituted negligence and gross negligence under state law.” Pechacek counters that the law does not recognize an inmate’s claim of negligent or intentional deprivation of property by a public official.

Texas common law recognizes claims of intentional and negligent destruction of personal property. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 n. 44 (Tex.2002) (defining common law conversion as “the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights”); Kelly v. Brown, 260 S.W.3d 212, 218 (Tex.App.-Dallas 2008, pet. denied) (recognizing personal injury and property damages recoverable under common law negligence claim). In addition, an inmate may bring suit asserting a common law claim for negligent, intentional, or reckless destruction of personal property if the TDCJ’s administrative grievance procedures have been exhausted. See Spurlock, 88 S.W.3d at 737; see also Tex. Gov’t Code Ann. § 501.008.

Hamilton’s original petition brings a negligence claim seeking damages for the destruction of his personal property. Moreover, his petition may be liberally construed to include a common law conversion claim as well. And Hamilton alleges that he has exhausted all TDCJ administrative grievance procedures that are required as a condition of his ability to bring suit. Accordingly, we hold that the trial court could not have properly concluded that Hamilton’s common law property claims lack an arguable basis in law and that, consequently, the trial court abused its discretion by dismissing these claims.

7. Hamilton’s Section 1983 Claims Relating to the Intentional Destruction of Personal Property

In his motion for new trial, Hamilton asserts that his claim of intentional destruction of property arises under 42 U.S.C. § 1983. The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.” U.8. Const, amend. XIV. However, a state prison official’s unauthorized intentional act that deprives an inmate of property is not a constitutional violation if there exists an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 535, 104 S.Ct. 3194, 3204-05, 82 L.Ed.2d 393 (1984). The Texas Legislature has provided an administrative remedy to compensate inmates for property lost or damaged by prison officials. See Tex. Gov’t Code Ann. §§ 501.007-.008 (addressing compensation process for inmate claims of lost or damaged property and establishing an inmate grievance system). Because they have an adequate post-deprivation remedy, inmates in Texas have no arguable basis in law for asserting a section 1983 due process claim for the intentional destruction of their property by a prison official. Spurlock, 88 S.W.3d at 736-37; Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex.App.-Tyler 1996, writ denied). Accordingly, there is no arguable basis in law for Hamilton’s section 1983 claim based on violation of his due process rights due to Pechacek’s alleged intentional destruction of his legal documents, and Hamilton cannot remedy this claim’s deficiencies by amending his pleadings. We hold, therefore, that the trial court did not err by dismissing this claim with prejudice under chapter 14.

Hamilton also alleges that the destroyed documents related to pending litigation against Assistant Warden Tommy Norwood. His petition, therefore, arguably may be construed to include an access to courts claim under 42 U.S.C. § 1983. To sustain a constitutional claim for denial of access to the courts, an inmate must show “actual injury” to a legal claim by demonstrating that his or her position as a litigant has been prejudiced by the defendant’s actions. McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir.1998); see Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 2179-80, 135 L.Ed.2d 606 (1996).

In this case, Hamilton’s original petition makes no factual allegations regarding the impact, if any, that the alleged destruction of his legal documents has on his position as a litigant in this or any other litigation. Hamilton cannot, therefore, prevail on a section 1983 access to courts claim because he has not alleged actual injury. See McDonald, 132 F.3d at 230-31. We hold that the trial court did not err to the extent that it dismissed this claim under chapter 14 as frivolous. However, it is possible that Hamilton may address this deficiency by amending his pleadings to specify how Pechacek’s alleged actions caused actual injury to a legal claim by prejudicing Hamilton’s position as a litigant. See id. Accordingly, we hold that the trial court abused its discretion by dismissing Hamilton’s section 1983 open courts claim with prejudice.

8. Hamilton’s Claim for Injunctive Relief

Hamilton’s original petition requests a temporary restraining order and an eight-point prohibitory injunction against Pechacek to ensure Pechacek’s ongoing compliance with TDCJ regulations and federal and state law. Hamilton argues that the trial court erred by dismissing this request because he adequately pleaded every element necessary to obtain injunctive relief. In response, Pechacek contends that Hamilton’s request for in-junctive relief fails because he did not allege the threat of imminent injury.

In an appeal from an order granting or denying a temporary injunction, the scope of review is restricted to the validity of the order granting or denying relief. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Argyle ISD v. Wolf, 234 S.W.3d 229, 237 (Tex.App.-Fort Worth 2007, no pet.). Whether to grant or deny a request for a temporary injunction is within the trial court’s discretion, and we will not reverse its decision absent an abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (op. on reh’g); Walling, 863 S.W.2d at 58.

To be entitled to a temporary injunction, the applicant generally must plead a cause of action and further show both a probable right to recover on that cause of action and a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; Argyle ISD, 234 S.W.3d at 236. An injunction is not proper when the claimed injury is merely speculative; fear and apprehension of injury are not sufficient to support a temporary injunction. Frequent Flyer Depot Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 227 (Tex.App.-Fort Worth 2009, pet. denied); Jordan v. Landry’s Seafood Rest, Inc., 89 S.W.3d 737, 742 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh’g). Thus, “[a]n injunction will not issue unless it is shown that the respondent will engage in the activity enjoined.” State v. Morales, 869 S.W.2d 941, 946 (Tex.1994).

Here, only one alleged incident forms the factual basis of Hamilton’s claims— Pechacek’s alleged assault on January 9, 2008, by intentionally or negligently spilling coffee on Hamilton and his legal documents. In his original petition, Hamilton contends that “[t]he assault and battery took place from a common and ongoing unjustified and excessive mistreatment of offenders.” Hamilton makes no factual allegation, however, supporting this contention or otherwise indicating that he faces any threat of imminent injury from Pecha-cek. Because Hamilton makes no factual allegation of the threat of imminent injury, we hold that the trial court did not abuse its discretion by denying his request for injunctive relief with prejudice.

VI. Conclusion

Because we have held that the trial court abused its discretion by dismissing Hamilton’s common law assault and battery and personal property claims, his section 1983 excessive force claim against Pe-chacek individually, and by dismissing with prejudice Hamilton’s section 1983 access to courts claim, we reverse the trial court’s order as to the dismissal of those claims with prejudice and remand those claims for further proceedings consistent with this opinion.

We affirm the remainder of the trial court’s judgment including the dismissal with prejudice of Hamilton’s request for injunctive relief; his section 1983 excessive force claim against Pechacek in his official capacity; his section 1983 Due Process claim for the destruction of property; his damages claim based solely upon alleged Texas constitutional violations; his claims based solely upon alleged violations of TDCJ rules, policies, and procedures; his claims based on Texas Penal Code violations or Texas Government Code sections 501.007 and 501.008; and his claims for declaratory judgment, protective order, and mandatary injunction.

      . Hamilton’s original petition also brings a claim for intentional infliction of emotional distress, but in briefing before the trial court Hamilton, specifically represented that he had ''abandonfed]" this claim.

      . Pechacek appears in this court pro se. Accordingly, we liberally construe his arguments and attempt to address the legal and factual arguments he makes. See, e.g., Tex. R.App. P. 38.9; McCullough v. Tex. Dep't of Criminal Justice-ID, No. 02-07-00072-CV, 2008 WL 704419, at *2 n. 6 (Tex.App.-Fort Worth Mar. 13, 2008, no pet.) (mem. op.).

      . Hamilton's contention — that his motion for new trial raises matters "not determinable from the record" — apparently relies upon the criminal standard for requiring an evidentiary hearing on a motion for new trial: "Generally, a trial court should hold a hearing if the motion and attached affidavit raise matters that are not determinable from the record that could entitle the accused to relief.” Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App.2005). Because this is not a criminal matter, we do not apply the criminal standard here.

      . Hamilton also argues that the trial court erred by violating Wichita County Local Rule 2.7.C.2, which requires in part that, "if the Court receives a written objection [to a proposed judgment, decree, or order] within [ten days], the proponent of the judgment, decree or order shall schedule a hearing for entry of the same.” However, the trial court did not fail to schedule a hearing: on July 21, 2008, it signed an "Order Setting Hearing" by submission only.

      . Because we sustain Hamilton’s second point on the ground that he complied with section 14.005, we do not address, and express no opinion regarding, Hamilton's alternative argument that dismissal based on failure to comply with section 14.005 is not authorized because "the prerequisites of § 14.005 are not mandatory, but merely are directory."

        . Pechacek states on appeal that, ‘‘[a]lthough no mention of the Eighth Amendment or excessive force are made, Hamilton’s petition may be liberally construed to include an excessive force claim brought under 42 U.S.C. § 1983.”

      . Hamilton's appellate brief seems to argue that his allegations that Pechacek acted in violation of TDCJ rules, policies, and procedures support his common law assault and battery and constitutional excessive force claims and do not, by themselves, constitute a separate cause of action. Hamilton failed to raise or brief any point challenging the trial court’s dismissal of any claim he may have brought based solely on Pechacek's alleged violation of TDCJ rules, policies, or procedures. Therefore, for purposes of this appeal, any alleged error by the trial court in dismissing such claims is waived. See Tex.R.App. P. 38.1(e), (h); Fredonia Slate Bank v. Gen. Am. life Ins. Co., 881 S.W.2d 279, 284-85 (Tex.1994) (discussing the “long-standing rule” that an appellate point may be waived due to inadequate briefing); Leachman, 261 S.W.3d at 305 n. 3 (holding that inmate waived challenge regarding constitutional claims because he failed to raise or brief them on appeal).

      . Hamilton's original petition also seeks declaratory judgment based on alleged violations of his rights under the Texas constitution. Hamilton failed, however, to raise or brief any point challenging the trial court’s dismissal of his declaratory judgment action. Therefore, for purposes of this appeal, any alleged error by the trial court is waived. See Tex.R.App. P. 38.1(e), (h); Fredonia State Bank, 881 S.W.2d at 284-85; Leachman, 261 S.W.3d at 305 n. 3.

      . Although asserting a claim for intentional destruction of his property, Hamilton acknowledges in briefing before the trial court that “no section 1983 claim exists for negligent damage to property.” [Emphasis added.]

      . Specifically, Hamilton sought to enjoin Pe-chacek from (1) communicating with Hamilton "in vulgar, obscene, or indecent language, or in a coarse or offensive manner, with intent to annoy or alarm”; (2) threatening to "take unlawful action" against Hamilton or others with personal knowledge of the facts of the case; (3) causing bodily injury to Hamilton or any witnesses in this case; (4) threatening Hamilton or witnesses with “imminent bodily injury”; (5) causing "offensive or provocative” physical contact with Hamilton or witnesses; (6) intentionally subjecting Hamilton "to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful”; (7) intentionally denying or impeding Hamilton “in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful”; and (8) intentionally subjecting Hamilton to sexual harassment.

      . Hamilton also requested a protective order against Pechacek and a mandatory injunction ordering the Executive Director of the TDCJ to file a complaint against Pechacek with the Wichita County District Attorney. Hamilton failed, however, to raise or brief any point challenging the trial court's dismissal of these requests. Therefore, for purposes of this appeal, any alleged error by the trial court in denying these requests is waived. See Tex. R.App. P. 38.1(e), (h); Fredonia State Bank, 881 S.W.2d at 284-85; Leachman, 261 S.W.3d at 305 n. 3.

      . Based on our holding that Hamilton failed to allege the threat of imminent injury, we do not address, and express no opinion regarding, Pechacek's alternative arguments attacking Hamilton’s request for injunctive relief.