Alonzo Diego Fuller v. Director's Review Committee, Texas Department of Criminal Justice, Institutional Division ( 1995 )

Fuller-AD v. Director's Review Committee-TDCJ

IN THE

TENTH COURT OF APPEALS

No. 10-94-291-CV

     ALONZO DIEGO FULLER,

                                                                                              Appellant

     v.

     DIRECTOR'S REVIEW COMMITTEE,

     TEXAS DEPARTMENT OF CRIMINAL

     JUSTICE, INSTITUTIONAL DIVISION,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,641

O P I N I O N

      Appellant Fuller appeals from an order of the trial court dismissing his pro se informa pauperis action as frivolous and malicious.

      Appellant, an inmate of the Texas Department of Criminal Justice - Institutional Division (TDCJ-ID) at the Hughes Unit in Gatesville, brought this action against Ms. Murkett, unit mailroom supervisor at the Hughes Unit, and the District Review Committee, TDCJ-ID, to require the Hughes Unit to deliver to him a package of stationery items mailed to him by Magic Video and Office Supply (MVOS) of Brownwood, Texas. The Hughes Unit mailroom refused to deliver the package, and Appellant appealed to the Director's Review Committee (DRC). The DRC upheld the Unit level's decision. Appellant, in this action, sought judicial review of the DRC decision, as well as a restraining order to prevent the Unit mailroom from destroying the items which had been mailed to him.

      The trial court dismissed Appellant's suit pursuant to Texas Civil Practice & Remedies Code § 13.001, finding "such cause of action frivolous and malicious because the claim stated therein has no arguable basis in law or in fact. In this regard the court finds: Failure to state a cause of action."

      Appellant appeals, asserting that the trial court erred in finding his petition failed to state a cause of action and in dismissing his case. Magic Video and Office Supply (MVOS) mailed Appellant a package containing stationery items. The Hughes Unit mailroom refused to deliver the package to Appellant asserting "[MVOS] not a legitimate business, not an authorized vendor of stationery or publications." Appellant sought review by the Director's Review Committee. The DRC upheld the decision of the Hughes Unit. Appellant filed this case seeking judicial review of the DRC decision as well as for a restraining order to prevent destruction of his package.

      The DRC, in affirming the Unit's action, stated: "The package was denied because it was received in contradiction to the correspondence rules; several irregularities were found. The invoice indicated the items were paid for by your Inmate Trust Fund; however, records do not reflect a withdrawal has been made from your trust fund account payable to Magic Video and Office Supply. In addition, when the mail system coordinator called the number on the invoice, it was not answered by a business, and the mail system coordinator determined that [Appellant's] brother resides at the address indicated for MVOS."

      Correspondence Rule 39.61 of TDCJ-ID provides:

            Packages may not be sent to inmates by individuals. TDC will permit the delivery of packages of stationery from legitimate suppliers and vendors (a vendor or supplier of stationery need not register in advance with TDC in order to be a legitimate supplier or vendor) subject to its right of inspection. Packages of publications may be sent to inmates by publishers or publication suppliers, including bookstores . . . . "

      Appellant pled that MVOS was a legitimate stationery business owned by his twin brother in Brownwood and operated out of his brother's house, and that Appellees acted arbitrarily in denying him the stationery items mailed to him by MVOS.

      We sustain Appellant's contention. We reverse the trial court's order of dismissal and remand Appellant's suit to the trial court.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed October 25, 1995

Do not publish

tyle="font-family: 'CG Times', serif">      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 8, 1993

Do not publish