Arcade Joseph Comeaux Jr. v. Tdcj-Id ( 2013 )

NUMBER 13-11-00446-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ARCADE JOSEPH COMEAUX JR., Appellant,
v.
TDCJ-ID, ET AL., Appellees.
On appeal from the 12th District Court
of Walker County, Texas.
MEMORANDUM OPINION1
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Pro se appellant Arcade Joseph Comeaux Jr., an indigent inmate at the Texas
Department of Criminal Justice, Institutional Division (TDCJ–ID), appeals from an order
1
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
signed on April 8, 2011 and modified and clarified on March 14, 2012. By five issues,
Comeaux contends the trial court erred when it: (1) failed to apply the law-of-the-case
doctrine to his original-petition claims; (2) concluded that he had dismissed all
original-petition claims and defendants; (3) dismissed his federal section 1983 claims
under chapter 14 of the Texas Civil Practice and Remedy Code; (4) failed to consider and
rule on pending motions; and (5) denied his request for an attorney at a pre-trial hearing.
We affirm.
I. BACKGROUND2
On July 15, 2002, Comeaux filed his original petition against the TDCJ–ID, the
University of Texas Medical Branch/Correction Managed Health Care (UTMB/CMHC),
and more than thirty individuals, including Sergeant Nixon, Sergeant Cleveland, and
Sergeant Briones. In this petition, Comeaux asserted denial of access to the courts,
retaliation, and excessive use of force based on an incident that allegedly occurred on
February 11, 2002. With his original petition and pursuant to chapter 14 of the civil
practice and remedies code, Comeaux filed a declaration of his previous filings, a
declaration stating the dates he filed his step-one and step-two grievances, the dates he
received the written decisions on his grievances, and copies of written decisions from the
grievance system. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004–.005 (West 2002 &
Supp. 2011). Nonetheless, the trial court dismissed Comeaux's suit with prejudice under
chapter 14, apparently determining that Comeaux did not timely file his claim. See id. §
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
14.005(b).
Comeaux appealed to the Fourteenth Court of Appeals,3 and on November 8,
2005, that court issued its memorandum opinion, concluding that Comeaux had complied
with section 14.005(b) of the civil practice and remedies code when he filed his original
petition before the thirty-first day after he received his written decision from the grievance
system on this grievance. Comeaux v. Tex. Dep't of Crim. Justice, Inst. Div., No.
14-02-01283-CV, 2005 Tex. App. LEXIS 9257, at *3–6 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (mem. op.); see TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b). The
Fourteenth Court reversed and remanded the case to the trial court for further
proceedings. Comeaux, 2005 Tex. App. LEXIS 9257, at *6.
After remand, Comeaux filed a motion for partial dismissal of his claims and
defendants. In his motion, Comeaux set out the following: “there were [sic] no ruling on
the merits and because the plaintiff is seeking relief on several defendants in federal
court, plaintiff, respectfully, motion [sic] the court for a voluntary dismissal without
prejudice of the following defendants and claims against them.” After listing twenty-nine
defendants, Comeaux specifically requested “that all of the . . . claims be dismissed with
the above defendants except for those stated in the amended and supplemental
[petition].” Comeaux also asked “the court to dismiss all the defendants 1-29 from the
[petition] and all claims.”
That same day, January 24, 2006, Comeaux filed an “amending and
3
Appeals from Walker County were taken to the Fourteenth Court of Appeals at that time. Now,
appeals from Walker County are to the Tenth Court of Appeals in Waco, Texas. As noted earlier, the
supreme court transferred the present appeal from the Tenth Court to this Court.
3
supplemental” petition. In his 2006 petition, Comeaux alleged three complaints based
on a new occurrence that allegedly occurred during a five-day period either in June or in
July 2001 or 2002 at the Huntsville Memorial Hospital Intensive Care Unit. This 2006
petition contained no declaration of previous filings. And Comeaux did not attach any
grievance process documentation or any other chapter 14 documentation regarding the
alleged grievance upon which this 2006 petition was based.
Finally, on April 23, 2008, at 10:00 a.m., Comeaux filed two “amending and
supplemental” petitions. One petition was identical to Comeaux’s 2006 petition, except
that the date of the alleged incident had been deleted. The second petition filed on April
23, 2008, complained of the events that allegedly occurred on February 11, 2002.
Comeaux included general language regarding grievance proceedings, but he did not
attach any chapter 14 documentation.
According to Comeaux, a visiting judge presided over a hearing that was held on
April 28, 2008. Comeaux and the defendants, through the Attorney General’s office,
were present. The following April 28 entry appears on the docket sheet:
Pl and Def by Atty Gen. present—Dismiss Held: Dismiss 29 —Sec Fed
1983 Claim—Def’s from Original Suit—Per request of Pl/A.G. to draw
dismissal order—Leave Tort Claim Act pending ag. Def’s Mrs. Demetrie
Phipps; Liza Harris, Frank Hoke, Robert Quada, Capt D. Laca, Sgt’s Sutton,
(name illegible) & Asset Committee—, Betty Nixon, FNU Cleveland, Sgt.
Brionni—Atty Gen. ordered to determine if listed def’s (above) want to be
represented by A.G.—file answer or notice of inability to locate w/I 60 days
(on or before 6/27/08 (or last known address). [Signature and initials
illegible.]
Three years later, on April 8, 2011, the trial court entered its written order finding
Comeaux had voluntarily dismissed the complaints in his 2002 petition because he was
4
filing his claims in federal court. The trial court also found that Comeaux’s January 24,
2006 amended petition was based on a new occurrence and that, among other things,
Comeaux failed to comply with the requirements of chapter 14. Therefore, the trial court
dismissed his cause of action. Comeaux appealed from the trial court’s dismissal order.
On January 30, 2012, we abated the appeal and requested that the trial court
clarify its April 8, 2011 order, which did not reference Comeaux’s April 23, 2008 petitions.
On March 14, 2012, the trial court entered its clarifying and modifying order. The court
again found that Comeaux had dismissed the claims in his original July 15, 2002 petition
in order to pursue them in federal court. The trial court also found that Comeaux
dismissed all of the defendants, although it acknowledged that Comeaux named Nixon,
Cleveland, and Briones as defendants in both the original petition and in the 2006
petition. Finally, the March 14, 2012 order again dismissed all claims in Comeaux’s
2006 amended petition and, for the first time, dismissed all claims in Comeaux’s 2008
supplemental petitions. The trial court described all 2006 and 2008 claims as new
claims and dismissed them for the following reasons: (1) failure to exhaust
administrative remedies; (2) failure to provide an appropriate affidavit of previous filings;
(3) failure to file the claims within thirty-one days of the completion of any grievance
proceeding; and (4) failure to file the claims within the period of limitation.
II. STANDARD OF REVIEW
We review a dismissal of an inmate's lawsuit under an abuse of discretion
standard. Harrison v. Tex. Dep't of Crim. Justice, Inst. Div., 164 S.W.3d 871, 874 (Tex.
App.—Corpus Christi 2005, no pet.); see Thomas v. Knight, 52 S.W.3d 292, 295 (Tex.
5
App.—Corpus Christi 2001, pet. denied) ("[A] dismissal for failure to comply with the
conditions set out in section 14.004 is not a dismissal on the merits, but rather an exercise
of the trial court's discretion under chapter 14 of the civil practice and remedies code.").
Abuse of discretion is determined by examining whether or not the trial court acted
without reference to any guiding rules or principles. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In other words, a trial court
abuses its discretion if it acts arbitrarily or unreasonably. Smithson v. Cessna Aircraft
Co., 665 S.W.2d 439, 443 (Tex. 1984).
III. LAW-OF-THE-CASE DOCTRINE
By his first issue, Comeaux contends that the trial court erred when it dismissed
the complaints in his original petition for non-compliance with chapter 14 because the
law-of-the-case doctrine applied. See TEX. CIV. PRAC. & REM. CODE ANN. §§
14.004–.005. He asserts that the trial court's dismissal of the claims in his original
petition violated the law-of-the-case doctrine—that law being the Fourteenth Court of
Appeals' holding that Comeaux had complied with chapter 14. See Comeaux, 2005 Tex.
App. LEXIS 9257, at *3–6.
The law-of-the-case doctrine is "that principle under which questions of law
decided on appeal to a court of last resort will govern the case throughout its subsequent
stages." Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (citing
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). "The [law-of-the-case]
doctrine applies if the facts in the second [stage] are substantially the same as in the
first . . . or so nearly the same that they do not materially affect the legal issues involved in
6
the second [stage]. . . ." City of Dallas v. Cornerstone Bank, N.A., 879 S.W.2d 264, 268
(Tex. App.—Dallas 1994, no writ).
In this case, the law-of-the-case doctrine would have applied if, after remand, the
trial court had dismissed Comeaux’s original-petition claims for non-compliance with
chapter 14. However, the trial court did not do so. Instead, after remand from the
Fourteenth Court and after Comeaux had filed his dismissal motion and his 2006 petition,
the trial court found that Comeaux had dismissed the claims in his original petition and all
defendants in order to pursue those claims in federal court. The trial court based its
finding on Comeaux's motion for partial dismissal of claims and defendants, his 2006
amended petition naming three defendants from the original petition but asserting only
new claims against them, the April 28, 2008 docket sheet entry, and rules of civil
procedure 64 and 65, which address the amendment and substitution of pleadings. See
TEX. R. CIV. P. 64, 65. The trial court did not base its finding, as to the claims in the
original petition, on non-compliance with chapter 14. Therefore, the law-of-the-case
doctrine does not apply under these facts.
Comeaux also argues that there was no new evidence that significantly changed
the record with regard to chapter 14 compliance, and “when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in the
same case.” See Arizona v. California, 460 U.S. 605, 618 (1983). However, the
Fourteenth Court of Appeals found that Comeaux had complied with sections 14.004 and
14.005 with respect to claims asserted in his original petition. Comeaux, 2005 Tex. App.
LEXIS 9257, at *3–6. The Houston Court did not make any such finding as to
7
Comeaux's 2006 petition or his 2008 petitions, which Comeaux had not yet filed. The
facts changed with regard to whether Comeaux met the filing requirements for these
petitions. Therefore, we also conclude that the law-of-the-case doctrine does not apply
to the later-filed petitions because the facts in this second stage of the case are not
substantially the same as in the first; instead, the facts changed such that they materially
affected the legal issues involved in the second stage.4 See Cornerstone Bank, 879
S.W.2d at 268. Therefore, we are not persuaded by Comeaux's no-new-evidence
argument.
We overrule Comeaux's first issue.
IV. ORIGINAL-PETITION CLAIMS AND DEFENDANTS
By his second issue, Comeaux contends that the trial court erred in determining
that he dismissed all of his original-petition claims and defendants. Comeaux argues
that, instead, the April 28, 2008 docket entry controls the disposition of the case or, at
least, provides support for his argument that he only dismissed his 1983 claims and some
of the defendants in his original petition. We disagree.
“A docket entry does not constitute a written order.” Smith v. McCorkle, 895
S.W.2d 692, 692 (Tex. 1995) (orig. proceeding) (per curiam). Furthermore, a docket
sheet entry "cannot contradict or take the place of a written order or judgment." In re Bill
Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding) (citing Smith, 895 S.W.2d at 692).
4
In accordance with rule 38.1(i) of the Texas Rules of Appellate Procedure, we will only consider
contentions that are supported by clear and concise arguments with appropriate citations to authorities and
to the record. TEX. R. APP. P. 38.1(i). Comeaux presents other arguments in support of this issue.
However, these contentions are not supported by citation to the record or to authority. See id. Therefore,
they are inadequately briefed, and we will not address them.
8
Aside from the docket sheet, there is nothing before us to suggest Comeaux
dismissed only his 1983 claims and not his tort claims when he filed his motion to dismiss.
Comeaux’s own motion to dismiss sought to dismiss twenty-nine defendants and all
claims, except for those stated in his subsequently-filed petition. We have no reporter’s
record from the April 28 hearing to guide us. And, in this case, there is a written order
from which the appeal was taken. The trial court found in its written order of April 8, 2011
and in its modifying and clarifying order of March 14, 2012, that Comeaux dismissed all
claims in his original petition in order to pursue them in federal court.
Finally, even were we to conclude that Comeaux did not voluntarily dismiss all
claims against all defendants in his motion for partial dismissal, Comeaux "effectively
nonsuit[ed] or voluntarily dismiss[ed]” any claims omitted from his dismissal motion when
he amended his petition in 2006.5 The 2006 petition, which replaced the 2002 petition,
did not include any cause of action from the original petition. See FKM P'ship, Ltd., v.
Bd. of Regents of Univ. of Houston, 255 S.W.3d 619, 632 (Tex. 2008); see also TEX. R.
CIV. P. 64, 65 (providing that amended pleadings supplant earlier pleadings); J.M. Huber
5
The trial court’s order referred to Comeaux’s 2006 petition as an amended petition. On appeal,
Comeaux also refers to this petition as an amended petition. Based on our review of the record, we agree
that the substance of Comeaux’s 2006 petition was that of an amended petition. See generally TEX. R.
CIV. P. 64 (“Amended Instrument”); id. at R. 65 (“Substituted Instrument Takes Place of Original”); id. at R.
69 (“Supplemental Petition or Answer”); id. at R. 71 (“Misnomer of Pleading”); id. at R. 80 (“Plaintiff’s
Supplemental Petition”); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (providing that a
court looks to the substance of a pleading for relief, not merely the title, to determine the nature of a
pleading); see also Jarvis v. Feild, 327 S.W.3d 918, 925 (Tex. App.—Corpus Christi 2010, no pet.) ("While
we have compassion for the plight of the pro se litigant attempting to follow the rules of legal procedure and
substantive law, and therefore construe pro se pleadings and briefs liberally, we must still hold appellant to
the same standard as a licensed attorney, requiring that he follow those same rules and laws . . . . To do
otherwise would give a pro se litigant an unfair advantage over a litigant represented by counsel."). The
2006 petition did not supplement the causes of action included in Comeaux’s original petition; neither did
the 2006 petition elaborate on the original petition's allegations. See TEX. R. CIV. P. 69 (providing for
supplemental petitions). Further, the 2006 petition did not contain supplemental claims challenging any
ground for dismissal urged by the State in response to the original petition. See id. Therefore, we, too,
conclude that the 2006 petition amended and replaced Comeaux's original petition. See id. at R. 65.
9
Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.]
1994, writ denied) ("An amended petition also supersedes all prior petitions and operates
to dismiss parties and causes of action to the extent they are omitted from the amended
pleading.").
We may not presume that Comeaux dismissed only his federal claims when the
record does not support such a presumption. We conclude that the trial court did not
abuse its discretion—it did not act arbitrarily or unreasonably—when it determined that
Comeaux had voluntarily dismissed all of this claims. See Harrison, 164 S.W.3d at 874;
see also Downer, 701 S.W.2d at 241–42; Smithson, 665 S.W.2d at 443. We overrule
Comeaux’s second issue.
V. DISMISSAL OF FEDERAL SECTION 1983 CLAIMS UNDER CHAPTER 14
By his third issue, Comeaux asserts that the trial court erred when it dismissed his
federal claims, if any, under chapter 14 because that state statute does not apply to
federal claims. Well-established law, however, provides otherwise.
"States may apply their own neutral procedural rules to federal claims, unless
those rules are pre-empted by federal law." Thomas v. Bush, 23 S.W.3d 215, 217–18
(Tex. App.—Beaumont 2000, pet. denied) (citing Howlett v. Rose, 496 U.S. 356, 372
(1990)). Section 1983 claims brought in federal court by inmates litigating in forma
pauperis are subject to substantially similar requirements as those imposed by chapter
14. Id. Comeaux points us to no relevant federal law pre-empting chapter 14, and we
find none. And Texas appellate courts often dismiss section 1983 claims pursuant to
chapter 14. See id.; see also Miles v. Tex. Dep't of Crim. Justice, No. 13-02-461-CV,
10
2004 Tex. App. LEXIS 7259, at *4 (Tex. App.—Corpus Christi Aug. 12, 2004, no pet.)
(mem. op.) (holding "that because appellant failed to state an actionable section 1983
claim, the trial court did not abuse its discretion in dismissing this claim under chapter 14
of the Texas Civil Practice and Remedies Code"); Williams v. Tex. Dep't of Crim. Justice
Inst. Div., No. 14-01-00646-CV, 2002 Tex. App. LEXIS 5808, at *4–5 (Tex.
App.—Houston [14th Dist.] Aug. 8, 2002, pet. denied) (mem. op.) (concluding that the
"application of Chapter 14 to appellant's section 1983 suit is neither arbitrary nor
capricious, and does not violate the Supremacy Clause" and dismissing section 1983
claims because plaintiff's affidavit of prior suits did not satisfy section 14.004); Willingham
v. Irons, No. 09-99-00368-CV, 2000 Tex. App. LEXIS 1001, at *2–3 (Tex.
App.—Beaumont Jan. 21, 2000, no pet.) (per curiam) (mem. op.) (dismissing plaintiff's
section 1983 claims for violation of chapter 14 when "[n]othing in the text of Section 1983
indicates that a suit brought under that section cannot be subject to a state-imposed
requirement of exhaustion of administrative remedies"). As the law provides, the
requirements of chapter 14 do not conflict with section 1983. See Thomas v. Wichita
Gen. Hosp., 952 S.W.2d 936, 939–40 (Tex. App.—Fort Worth 1997, pet. denied); see
also Vaughn v. Hicks, No. 14-08-00726-CV, 2009 Tex. App. LEXIS 2710, at *3 (Tex.
App.—Houston [14th Dist.] Apr. 16, 2009, pet. denied) (per curiam) (mem. op.). We
conclude the trial court did not err when it dismissed Comeaux's federal claims, if any,
under chapter 14. Accordingly, we overrule Comeaux's third issue.6
6
Comeaux presents additional arguments in support of this issue. However, like his first issue,
these contentions are not supported by citation to the record or to authority. TEX. R. APP. P. 38.1(i).
Therefore, they are inadequately briefed, and we will not address them.
11
VI. PENDING MOTIONS
By his fourth issue, Comeaux contends that, after remand, the trial court abused its
discretion when it dismissed his claims without considering and ruling on motions that had
been pending for over five years. Comeaux claims that by disregarding all motions, the
trial court violated its ministerial duty and denied him due course and due process of law.
A trial court has a ministerial duty to consider and rule on a motion within a
reasonable time. See In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001,
orig. proceeding). An official violates this duty when it fails to perform a ministerial act.
In re Bailey, 975 S.W.2d 430, 432 (Tex. App.—Waco 1998, orig. proceeding). Comeaux
relies on this authority. However, considering the facts of this case and our analysis
above, these propositions of law provide no support for this issue.
We have concluded that the trial court correctly determined that Comeaux
dismissed certain claims in order to pursue them in federal court and that he effectively
dismissed his remaining original-petition claims when he omitted those claims from his
amended petition. We have also concluded that Comeaux's federal claims could be
dismissed under chapter 14. In addition, the law-of-the-case doctrine does not apply to
claims made in Comeaux’s original petition. Moreover, we cannot conclude that the trial
court arbitrarily dismissed the claims that Comeaux brought in his 2006 and 2008
petitions. To the extent Comeaux is attempting to challenge the court’s dismissal order
in that regard, the trial court acted with reference to guiding rules and principles. See
Downer, 701 S.W.2d at 241–42; Smithson, 665 S.W.2d at 443; see also Knight, 52
S.W.3d at 295. It dismissed those claims on the basis that Comeaux failed to comply
12
with chapter 14 and on the basis that he failed to file the claims within the correct period of
limitation. Thus, we conclude that the trial court did not abuse its discretion in dismissing
Comeaux’s 2006 and 2008 claims. See Harrison, 164 S.W.3d at 874.
Because we have concluded that the trial court’s dismissal of Comeaux’s claims
was not an abuse of discretion, its failure to consider Comeaux’s motions was also not an
abuse of discretion. See Nabelek v. Dist. Attorney of Harris County, 290 S.W.3d 222,
232–33 (Tex. App.—Houston [14th Dist.] pet. denied); see also Lagaite v. Livingston, No.
03-07-00067, 2008 Tex. App. LEXIS 7478, at *5–6 (Tex. App.—Austin, Aug. 27, 2008, no
pet.) (mem. op.) (concluding that because it had determined “that the trial court did not
abuse its discretion in dismissing Lagaite's suit as frivolous, the trial court had no
obligation to rule on Lagaite's pending motion"); Garrett v. Nunn, No. 07-06-0428-CV,
2007 Tex. App. LEXIS 8674, at *8–9 (Tex. App.—Amarillo Oct. 31, 2007, no pet.) (mem.
op.) ("[B]ecause we have found that the trial court's dismissal of Garrett's complaint was
not an abuse of discretion, its failure to consider Garrett's motions was also not an abuse
of discretion . . . ."). The trial court had no obligation to rule on the motions. See
Nabelek, 290 S.W.2d at 232–33. Additionally, while the record contains numerous
motions filed by Comeaux, those motions were effectively denied when the trial court
dismissed Comeaux's suit. See id. at 233. We overrule Comeaux's fourth issue.
VII. REQUEST FOR APPOINTMENT OF COUNSEL AT THE APRIL 28, 2008 HEARING
Comeaux asserts, by his fifth issue, that the trial court erred when it denied his
request for an attorney to assist him at the April 28, 2008 pre-trial motion hearing.
Comeaux complains that "[t]he trial court had no idea what was going on or what was
13
being said” and “that a 3 hour recess did nothing to clarifying [sic] the hearing's agenda
and process." He further alleges that his claims are even more compelling because,
[a] criminal act and serious ethical violations may have occurred and that
Comeaux's rights to a fair and impartial trial may have been violated by the
defendants['] attorneys whom [sic] either committed perjury to delay the trial
court from ruling on Comeaux's motion and/or fraudulently represented
defendants' interest in the case without permission, open[ed] legal mail
without authorization, falsely filed motions and briefs on behalf of
. . . defendants they did not have permission to represent, which cause[d]
documents to be destroyed, evidence to be destroyed favorable to the
plaintiff through fraudulent representation that did deprive appellant of his
right to due course and due process of law . . . as well as right to a fair and
impartial trial.
While the Sixth Amendment to the United States Constitution grants an indigent
criminal defendant the right to counsel, that right does not apply to civil cases. See
Turner v. Rogers, 131 S. Ct. 2507, 2515–20 (2011). Instead, with only rare exceptions, a
party is not entitled to court-appointed counsel in a civil case. Gibson v. Tolbert, 102
S.W.3d 710, 712 (Tex. 2003). In addition, "[t]he mere fact that an indigent inmate brings
a cause of action against an employee of the prison in which the inmate is incarcerated
does not constitute exceptional circumstances such that it warrants appointed counsel";
an inmate suit against prison personnel is common, rather than rare and unusual. Id. at
713.
The Texas Supreme Court has determined, however, that a trial court has
discretion to appoint counsel to an indigent civil litigant in some "exceptional cases"
where "the public and private interests at stake are such that the administration of justice
may best be served by appointing a lawyer to represent an indigent civil litigant."
Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). In such a case,
14
there is a presumption that an indigent litigant has a right to appointed counsel, but only
when, if he loses, he may be deprived of his physical liberty. See Lassiter v. Dep't of
Social Servs., 452 U.S. 18, 25–27 (1981). We review the trial court’s refusal to appoint
counsel under an abuse of discretion standard. See, generally, Gibson, 102 S.W.3d at
712–13.
As explained in Gibson, Comeaux's inmate lawsuit is common. See 102 S.W.3d
at 711. It is not rare and unusual. See id. The mere fact that Comeaux brought suit
against the prison and its employees does not constitute exceptional circumstances.
See id. Therefore, under Gibson, Comeaux’s circumstances did not warrant appointed
counsel.
We are not unsympathetic to Comeaux's allegations regarding the complexity of
the case, its extensive litigation process, and the alleged actions of defense counsel and
the trial court. Nonetheless, we decline to conclude that Comeaux's case is exceptional
because Comeaux provides no record citations in support of his assertions, see TEX. R.
APP. P. 38.1(i); Travelers Indem., 923 S.W.2d at 594, and there is no reporter's record
from the April 28, 2011 hearing for our review. In addition, as appellees point out,
Comeaux did not request findings of fact and conclusions of law. See Pedraza v.
Crossroads Sec. Sys., 960 S.W.2d 339, 341 (Tex. App.—Corpus Christi 1997, no writ).
Therefore, we have no basis from which to determine whether this is an exceptional case
where the administration of justice would have been served by appointing a lawyer to
represent Comeaux at this hearing. See Mayfield, 923 S.W.2d at 594. In addition,
Comeaux is already incarcerated so there is no chance that the trial court’s failure to
15
appoint counsel would have resulted in his loss of liberty. See Lassiter, 452 U.S. at
25–27.
We conclude that the trial court did not abuse its discretion when it denied
Comeaux’s request for an attorney at the April 28, 2008 pre-trial motion hearing. We
overrule Comeaux's fifth issue.
VIII. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 31st
day of January, 2013.
16