in Re Bonnie R. Echols ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00039-CV

In re Bonnie R. Echols

Original Proceeding

MEMORANDUM OPINION

The petition for writ of mandamus is dismissed as moot.

                                                                                                BILL VANCE

                                                                                                Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition dismissed as moot

Opinion delivered and filed June 21, 2006

[OT06]

y in the affidavit is false; or

(2) the action is frivolous or malicious.

(b) In determining whether an action is frivolous or malicious, the court may consider whether:

(1) the action's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact; or

(3) it is clear that the party cannot prove a set of facts in support of the claim.

(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.

Id.

          The court found "it is clear that the party cannot prove a set of facts in support of the claim." See id. at § 13.001(b)(3). Because of recent federal decisions, a dismissal under section 13.001(b)(3) is no longer appropriate. See Neitzke v. Williams, 490 U.S. 319, ———, 109 S. Ct. 1827, 1834, 104 L. Ed. 2d 338 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex. App.—Houston [14th Dist.] 1990, writ granted). The federal counterpart of section 13.001 is section 1915(d) of Title 28, which authorizes federal courts to dismiss in forma pauperis suits "if t he allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." See 28 U.S.C.A. § 1915(d) (West 1966). While the federal statute does not contain guidelines for determining when a suit is frivolous, a dismissal is proper if the claim has no arguable basis in law and fact. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), cert. denied, ——— U.S. ———, 110 S. Ct. 417, 107 L. Ed. 2d 382 (1989); Pugh, 875 F.2d at 438. The rationale behind granting this power to trial courts is to "prevent abusive or captious litigation" where the in forma pauperis litigant "lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at ———, 109 S. Ct. at 1831, 104 L. Ed. 2d 338. "To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. at ———, at 1833 (emphasis added). An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit. Id. An example of factually baseless contentions occurs where the petition describes claims arising out of fantastic or delusional scenarios. Id.

          The court also specified that Adams's petition was dismissed because "the action's realistic chance of ultimate success [was] slight." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(1) (Vernon Supp. 1991). The petition alleged that the action was brought pursuant to chapter 134 of the Texas Civil Practice and Remedies Code and that he sustained damages because his broken glasses and a AA battery were confiscated. See id. at §§ 134.001-134.005 (Vernon Supp. 1991). Without referring to any specific section, he also generally asserted that the defendants' acts violated the provisions of chapter 39 of the Penal Code. See Tex. Penal Code Ann. §§ 39.01-39.04.

          Section 13.001 provides that a court may dismiss a cause as frivolous before service of process if the action's realistic chance of success is slight. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(1) (Vernon Supp. 1991). In evaluating the petition the court could have considered that the named defendants, as employees of the state, were entitled to quasi-judicial immunity from damages. See Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App.—Houston [14th Dist.] 1990, no writ). The court could also have concluded that the dispute essentially arose over whether the broken glasses were contraband, as defined by the administrative regulations of the prison, and that there was no substance to the allegations that their confiscation amounted to theft. Additionally, the court could also consider that Chapter 39 of the Penal Code creates no private rights of action—its provisions are purely penal in nature. Thus, we conclude that the court did not abuse its discretion when it dismissed Adams's petition for the reason stated. See Johnson, 800 S.W.2d at 938; Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (Vernon Supp. 1991).

          Recognizing that our Supreme Court has declined to "imply approval of a dismissal of an action based solely upon section 13.001(b)(1)," that the test applicable under the federal statute is the one enumerated in our statute as section 13.001(b)(2) ("a complaint . . . is frivolous where it lacks an arguable basis in law or in fact"), and that our duty is to affirm the dismissal if it was proper under any legal theory, we conclude that the dismissal of Adams's claims under 13.001(b)(2) would have been amply justified because the claim had no arguable basis in fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Ross v. Walsh, 629 S.W.2d 823, 826 (Tex. App.—Houston [14th Dist.] 1982, no writ); Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(1), (2) (Vernon Supp. 1991). Because the dispute was essentially over the classification of the broken glasses as contraband, the court could have "pierced the veil" of Adams's factual allegations and concluded that the allegations were of the type whose factual contentions are clearly baseless. See Neitzke, 490 U.S. at ———, 109 S. Ct. at 1833, 104 L. Ed. 2d 338. We overrule Adams's point.

          We affirm the judgment of dismissal.

                                                                                           BILL VANCE

                                                                                           Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

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