Ivo Nabelek v. District Attorney of Harris County, Texas

Concurring Opinion of September 8, 2005 Withdrawn and Dissenting Opinion on Rehearing filed November 30, 2006

Concurring Opinion of September 8, 2005 Withdrawn and Dissenting Opinion on Rehearing filed November 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-03-00965-CV

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IVO NABELEK, Appellant

V.

DISTRICT ATTORNEY OF HARRIS COUNTY, TEXAS, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 01-38188

D I S S E N T I N G   O P I N I O N  O N  R E H E A R I N G 

On original submission, this court affirmed the trial court=s judgment.  I did not join in the court=s opinion, but instead filed a concurring opinion.  Today the court denies appellant Ivo Nabelek=s motion for rehearing.  After considering Nabelek=s motion, I conclude that this court should grant rehearing, reverse the trial court=s judgment, and remand the case for further proceedings.  Accordingly, I withdraw my original concurring opinion, and issue this dissenting opinion on rehearing in its place. 

Is there reversible error based on the failure to record the September 13, 2002 hearing?

The first issue presents a classic catch-22 situation: there was no court reporter to record the hearing and without a court reporter to make the record, there was no record to preserve the complaint about the lack of a court reporter.  The majority concludes that Nabelek did not preserve error on issue one because the record does not show he Arequested that the court reporter record the September 13, 2002 hearing.@  Under the circumstances of this case, no such record is necessary to reach the merits of Nabelek=s argument.

In the statement of facts in his appellate brief, Nabelek asserts that he made an oral motion at the beginning of the telephonic hearing requesting a court reporter and an audio recording of the hearing, which the trial court denied.  The District Attorney of Harris County, Texas (hereinafter ADistrict Attorney@) does not challenge this factual assertion.  Under Texas Rule of Appellate Procedure 38.1(f), this court will accept as true the factual contentions presented in the statement of facts section of Nabelek=s brief, unless contradicted by another party.^[1] See Tex. R. App. 38.1(f); see also City of Houston v. Alief I.S.D., 117 S.W.3d 913, 915 (Tex. App.CHouston [14th Dist] 2003, no pet. h.) (accepting as true appellant=s assertion that the tax master entered a take-nothing judgment, in the absence of any argument by appellees to the contrary and without a judgment by the tax master in the record).  Because the District Attorney does not dispute that Nabelek made the request for a court reporter at the September 13, 2002 hearing, this court should take Nabelek=s contention as true and thus reach the merits of Nabelek=s complaints.

Nabelek contendsCand the District Attorney does not disputeCthat Nabelek timely requested a record to be made of the hearing.  A court reporter must record court proceedings if a party so requests.  See Tex. Govt. Code Ann. ' 52.046(a)(2)(Vernon 2005); Tex. R. App. P. 13.1(a).  Thus, a record of the hearing should have been made upon Nabelek=s request.  The majority reasons that because the trial court was not required to hold a hearing in the first place, the failure to record it is of no consequence. This reasoning is flawed.

Although a trial court is not required to hold a hearing before dismissing a suit under section 14.003(a), it does not follow, as the majority suggests, that if the court elects to hold such a hearing it may deny or ignore a party=s request to record the proceeding; indeed, the plain language of both Rule 13.1(a) and section 52.046(a) suggests that a record of court proceedings is a right of the parties and not within the discretion of the trial court.  A record of the hearing should have been made if Nabelek requested one.  See Tex. Govt. Code  Ann. ' 52.046(a)(2)(Vernon 2005); Tex. R. App. P. 13.1(a).

Nabelek alleges that the trial court denied his request for a court reporter, informing him that the hearing was only to provide the court with a Agrasp@ of the issues and that the court would not rely on it in its final determinations of the matters presented; therefore, the court purportedly explained, no record of the hearing was necessary.^[2] Nabelek further contends that despite these assurances, the trial court did consider the arguments at the September 13, 2002 hearing in deciding to dismiss his claim. The recitations in the October 18, 2002 AOrder Dismissing Case@ support Nabelek=s argument: 

AOn September 13, 2002 the Court heard [the District Attorney]=s Motion to Dismiss Frivolous Action and Motion for Summary Judgment.  At the hearing the court heard and considered the pleadings and arguments of [Nabelek] (who participated in the hearing without counsel) and counsel for the Defendant . . . .  The Court orders as follows in connection with the Motions.  It is ordered that the claims of [Nabelek] in this case are dismissed under Sec[t]ion 14.003(a)(2) of the Texas Civil Practice and Remedies Code as frivolous claims.@ 

The order indicates that the arguments presented at the September 13, 2002 hearing played a role in the trial court=s decision to dismiss Nabelek=s claim.  Nabelek, however, has not shown how the absence of a record of the hearing caused the rendition of an improper judgment or prevented him from properly presenting his case to this court.  See Tex. R. App. P. 44.1(a).  Because Nabelek has not shown harm from the court=s denial of his oral request that a record be made of the hearing, he is entitled to no relief.  See State Farm Fire and Casualty Ins. Co., 941 S.W.2d 343, 350 (Tex. App.CWaco 1997, no pet.) (finding no grounds for reversal where appellant was unable to show harm flowing from lack of record); Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508, 520 (Tex. App.CHouston [14th Dist. 1987, writ ref=d n.r.e.) (holding appellant=s rights not prejudiced on appeal based on missing portions of the record where no harm was shown).  For this reason, the court correctly overrules Nabelek=s first issue. 

Do Nabelek=s claims have an arguable basis in law?

The District Attorney filed a motion for summary judgment asserting that Nabelek=s claims are time-barred and that, as a matter of law, the statute in question is constitutional as applied to Nabelek.  Although the trial court held a hearing on this summary-judgment motion, the trial court did not grant this motion or any other; rather, the trial court dismissed Nabelek=s claims as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code.^[3] See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon 2002).  Because the trial court dismissed Nabelek=s claims as frivolous under section 14.003 without holding an evidentiary hearing, this court can affirm the trial court=s ruling only if Nabelek=s claims have no arguable basis in law.  Retzlaff v. Tex. Dept. of Crim. J., 94 S.W.2d 650, 653 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). As the majority acknowledges, for a claim to have no arguable basis in law, it must be based on an indisputably meritless legal theory or be based on wholly incredible or irrational factual allegations.  See Nabelek, C S.W.3d at C, 2005 WL 2148999, at *3; Minix v. Gonzalez, 162 S.W.3d 635, 637 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  If Nabelek=s petition has an arguable basis in law, then the trial court erred in dismissing it as frivolous.  See Retzlaff, 94 S.W.2d at 654.       Because the trial court did not sustain any special exceptions against Nabelek=s petition, this court must construe the petition liberally in Nabelek=s favor.  See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).  In his petition, Nabelek alleges the following:

!       Nabelek brings suit to determine the constitutionality of section 552.028 of the Texas Government Code as applied to Nabelek and his circumstances.

!       The District Attorney, Awhen relying on [section 552.028] to deny [Nabelek] access to public information under Open Records Act (ORA), is unconstitutionally depriving [Nabelek] of his rights under the: First, Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution; the Due Process, Equal Protection and Equal Opportunities Clauses of the Texas and/or U.S. Constitutions . . . .@

!       As part of his investigation and preparation for filing pro se habeas corpus actions that are now pending in the 208th District Court, Nabelek requested the District Attorney, under the Open Records Act, to give Nabelek access to all public information pertaining to Nabelek and the prosecution against him which is in the files of the District Attorney. 

!       The District Attorney=s legal counsel, relying on section 552.028 repeatedly denied Nabelek=s requests for information in their entirety, citing Nabelek=s imprisonment and the District Attorney=s statutory discretionary power not to comply with the request.

!       There are no discovery procedures available for Nabelek to seek this public information, so the only mechanism Nabelek has to obtain this information is through the Open Records Act. 

!       It is important for Nabelek to obtain this public information so that he can use it in support of his arguments on habeas corpus that his trial counsel rendered ineffective assistance by not investigating the facts and applicable law and by not reviewing the District Attorney=s file. 

!       Section 552.028 provides that a governmental body is not required to accept or comply with a request for information from an individual who is imprisoned or confined in a correctional facility. 

!       Section 552.028 is unconstitutional because it allows the District Attorney to deny Nabelek access to information under the Open Records Act because he is incarcerated, even though the District Attorney cannot deny access to an attorney representing Nabelek. 

!       Section 552.028 violates the Equal Protection and Due Process Clauses by unlawfully discriminating against Nabelek as a prisoner and depriving him of access to public information that is available to both those who are not in prison and attorneys representing prisoners. 

!       Nabelek seeks declaratory and injunctive relief that section 552.028 is unconstitutional as applied to him.

Without addressing the merits of Nabelek=s claims, these claims are not based on wholly incredible or irrational factual allegations, and the majority has not stated or shown otherwise.  Furthermore, Nabelek=s claims are not based on an indisputably meritless legal theory.  Regardless of whether Nabelek would succeed on the merits, it is not indisputably  meritless to argue the unconstitutionality of a statute that allows a governmental body to deny an Open Records Act request from prisoners and their agents based solely on the persons= status as prisoners, while not allowing such a denial if the prisoners= attorneys make the same request. The majority does not assert otherwise; rather, the majority concludes that Nabelek=s claims are frivolous because they are time-barred.

The majority=s analysis conflicts with the applicable legal standard.  Nothing in Nabelek=s petition indicates the dates or times when Nabelek made Open Records Act requests, and nothing in the petition indicates that Nabelek=s claims are time-barred. Nabelek does not assert that the District Attorney denied his Open Records Act request in 1995 and that the statutory basis for this denial is unconstitutional.  Rather, in his pleadings Nabelek speaks in the present tense, asserting that the District Attorney is unconstitutionally depriving Nabelek of his constitutional rights by denying him access to public information to which he would have access if he were not imprisoned or if he had counsel to represent him.  Nabelek does state that he requested information in the past under the Open Records Act and that the District Attorney repeatedly denied these requests based on Nabelek=s status as a prisoner.  However, Nabelek does not state the dates on which he allegedly made these requests.  The majority bases its analysis on documents contained in the District Attorney=s summary-judgment evidence.  However, the trial court did not grant summary judgment, so this court may not base its decision on summary-judgment evidence.  The only issue before this court is whether the claims asserted in Nablelek=s petition are based on an indisputably meritless legal theory or on wholly incredible or irrational factual allegations.  See Nabelek, C S.W.3d at C, 2005 WL 2148999, at *3; Minix, 162 S.W.3d at 637.  Because Nabelek=s claims are not so based, this court errs in affirming the trial court=s dismissal of these claims as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code.^[4] See Elias v. DeLeon, No.12-04-00143-CV,  2005 WL 2404113, at *2 (Tex. App.CTyler Sept. 30, 2005, no pet.) (mem. op.) (holding that prison inmate=s petition asserting conversion claim had an arguable basis in law); Minix, 162 S.W.3d at 639 (holding that prison inmate=s petition asserting Theft Liability Act claim against two correctional officers in their individual capacities had an arguable basis in law);  Retzlaff, 94 S.W.2d at 654 (holding that prison inmate=s petition for judicial review of prison disciplinary proceeding had arguable basis in law).

Furthermore, with the exception of the situation in which the petition contains facts affirmatively showing as a matter of law that the claims are time-barred, the use of a statute-of-limitations defense to conclude that one=s claims are frivolous has no support in Texas jurisprudence.  Assertion of the statute of limitations is an affirmative defense,^[5] which, by definition, presupposes that the prima facie elements of the alleged unlawful conduct can be established, but provides independent grounds for why the claim cannot be successful.  Heggy v. Amer. Trading Employee Retirement Account, 123 S.W.3d 770, 778 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (AAn affirmative defense does not rebut the factual propositions of the plaintiff=s pleading, but instead, allows the defendant to introduce evidence to establish an independent reason why the plaintiff should not prevail.@)  AAn affirmative defense generally accepts the existence at one time or another of a prima facie case.@ Id.  Thus, it does not follow that a claim may be deemed to have no arguable basis in law or fact merely because an affirmative defense could bar the claim.  The fact that a claim is potentially barred by limitations does not render it frivolous.  See Walston v. Lockart, No. 10-03-00183-CV, 2005 WL 428433, at *6 (Tex. App.CWaco February 23, 2005, pet. denied) (Gray, J., concurring in mem. op.) (concluding that the filing of a suit upon which limitations has run, alone, is not grounds for sanctions or the characterization of the suit as groundless or frivolous).  Even if the statute of limitations barred the claims Nabelek asserts in his petition, this would not mean Nabelek=s claims have no arguable basis in law, unless Nabelek=s petition asserted facts showing as a matter of law these claims are time-barred.  Nabelek=s petition does not assert such facts.  The majority=s analysis on this point is ill-reasoned. 

This court should grant rehearing, reverse the trial court=s order dismissing Nabelek=s claims as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code, and remand for further proceedings.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Concurring Opinion of September 8, 2005 Withdrawn and Dissenting Opinion on Rehearing filed November 30, 2006.

Panel consists of Justices Anderson, Hudson, and Frost.

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^[1]  Texas Rule of Appellate Procedure 38.1(f) states in pertinent part that Athe brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them.@  Tex. R. App. 38.1(f).

^[2]  The District Attorney does not challenge Nabelek=s statements in this regard.

^[3]  Because the majority overrules issue five, it does not address Nabelek=s third issueCthe trial court=s alleged dismissal on the alternative ground that Nabelek failed to comply with the requirements of section 14.004 of the Texas Civil Practice and Remedies Code, which requires indigent inmates to file an affidavit relating to previous filings.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004 (Vernon 2002).  The order of dismissal clearly states that it is based on section 14.003(a)(2) with no mention of section 14.004 or Nabelek=s alleged non-compliance with it.

^[4]  The majority also concludes Nabelek=s claims are frivolous because there is no justiciable controversy as to his rights.  However, Nabelek asserts that section 552.028 violates the Texas and United States Constitutions and prevents him from obtaining information he needs for his attempts to secure habeas corpus relief.  The Attorney General asserts the statute is constitutional. Therefore, a justiciable controversy exists.  See Tex. Civ. Prac. & Rem. Code Ann. '' 37.003, 37.004.

^[5]  AAffirmative Defense@ is defined as A[a] defendant=s assertion raising new facts and arguments that, if true, will defeat the plaintiff=s or prosecution=s claim, even if all allegations in the complaint are true.@  Black=s Law Dictionary 430 (7th ed. 1999).