Opinion

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-08-480-CV

REGINALD

DALE PETERS APPELLANT

V.

ROBERT CRANK, DAVID CONWAY, APPELLEES

ROBERT CHRISTIAN, LESLIE CRANE,

RALPH H. WALTON, JR., ALLEN

HARDIN, AND ROBERT YOUNG

------------

NO.

2-08-481-CV

REGINALD

DALE PETERS APPELLANT

V.

LARRY

GOWIN, DAVID CONWAY, APPELLEES

ROBERT YOUNG, ALLEN

HARDIN,

AND ROBERT CHRISTIAN

------------

NO.

2-08-482-CV

REGINALD

DALE PETERS APPELLANT

V.

CLINT

PULLMAN, ROBERT APPELLEES

CRANK, ALLEN HARDIN, AND

ROBERT CHRISTIAN

------------

NO.

2-08-483-CV

REGINALD

DALE PETERS APPELLANT

V.

VINCENT

MESSINA, STUART NEIL, APPELLEES

KELTON CONNER, JUDY

WATSON,

ROBERT CHRISTIAN, J.L.

EAST,

ALLEN HARDIN, ROBERT

CRANK,

DAVID CONWAY, DAVID

TUCKER,

LESLIE CRANE, ROBERT

YOUNG,

THELBERT MILLSAP, JOHNNY

ROSE,

JOHNNY MILLER, JUDY ELAIN

PETERS,

ANGELA CHRISTINE PETERS,

AND

REGINALD DALE PETERS, III

-----------

NO.

2-08-484-CV

REGINALD

DALE PETERS APPELLANT

V.

GREG

ABBOTT, J.E. MAYO, AND APPELLEES

ROBERT CHRISTIAN

-----------

NO.

2-08-485-CV

REGINALD

DALE PETERS APPELLANT

V.

SETH

BYRON DENNIS APPELLEE

------------

FROM THE 355TH

DISTRICT COURT OF HOOD COUNTY

------------

MEMORANDUM OPINION [1]

------------

In this consolidated appeal, Appellant Reginald

Dale Peters appeals the trial court = s orders

dismissing his pro se, in forma pauperis suits against Appellees Greg Abbott,

Seth Byron Dennis, Ralph H. Walton, Jr., Vincent Messina, Kelton Conner, Judy

Watson, J.L. East, Robert Young, Thelbert Millsap, Johnny Rose, Johnny Miller,

Robert Crank, David Conway, Allen Hardin, J.E. Mayo, Robert Christian, Clint

Pullman, Larry Gowin, Leslie Crane, Stuart Neil, David Tucker, Judy Elain

Peters, Reginald Dale Peters, III, and Angela Christine Peters. We will affirm.

Peters is an inmate incarcerated in the William

P. Clements Unit of the Institutional Division of the Texas Department of

Criminal Justice. He filed the first of

six petitions in January 2008, all complaining about a chain of incidents that

occurred between December 2003 and May 2004.

Peters alleged that in late December 2003, Hood County law enforcement

officers assaulted him and endangered his child when they executed a warrant

for his arrest at his residence. He

claimed that around the same time, he informed law enforcement personnel about

thousands of dollars = worth of unsecured personal

property at his residence and that the property was stolen while he was in

jail. Peters also alleged that in May

2004, after he had been arrested again and while he was in jail, his bondsman

and possibly his son and ex-wife stole thousands of dollars = worth of

property from his residence.

The central complaints running through Peters = s

filings are that the Appellees perpetrated a fraud and violated his

constitutional rights by committing or assisting in the commission of the

complained-of acts or failed to either investigate his complaints regarding the

stolen property or file charges on those complaints. Although it is not entirely clear from the

record, all of the Appellees seem to have been involved in some way at some

point during the events that form the basis of the suits.

Peters stated in the petitions that he brought a A Texas

State Tort Claim @ pursuant to articles 100.001

through 100.109 of the A Texas State Tort Claims Act @ against

the defendants in their individual capacities C A so as to

over come any type of claim of immunity. @ In conjunction with the tort claims, he

alleged that the defendants violated his rights guaranteed him under the

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution. Peters sought damages of

ten to fifty million dollars, and he affirmed in the petitions that he filed

the lawsuits pro se and in forma pauperis.

The trial court dismissed his suits and declared him a vexatious litigant. [2]

Peters = s suits

are governed by chapter 14 of the civil practice and remedies code. Chapter 14 governs suits brought by an inmate

in a district, county, justice of the peace, or small claims court in which the

inmate files an affidavit or unsworn declaration of inability to pay

costs. Tex. Civ. Prac. & Rem. Code

Ann. ' 14.002(a)

(Vernon 2002); Garrett v. Borden , 283 S.W.3d 852, 852 (Tex. 2009); Garrett

v. Williams , 250 S.W.3d 154, 157 (Tex. App. C Fort

Worth 2008, no pet.); Garrett v. Trapp , No. 02-08-00186-CV, 2008 WL

5115227 , at *1 (Tex. App. C Fort Worth Dec. 4, 2008, no

pet.) (mem. op.). The legislature

enacted this statute 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.

Williams , 250 S.W.3d at 157 ; Bishop v. Lawson , 131 S.W.3d

571, 574 (Tex. App. C Fort Worth 2004, pet.

denied). The purpose of chapter 14 is

not to punish inmates for filing claims but to aid the court in determining

whether an inmate = s claim is frivolous. Williams , 250 S.W.3d at 157 .

A court may dismiss a claim if the court finds

that the allegation of poverty in the affidavit or unsworn declaration is false,

if the claim is frivolous or malicious, or if the court finds that the inmate

filed an affidavit or unsworn declaration required by this chapter that the

inmate knew was false. Tex. Civ. Prac.

& Rem. Code Ann. ' 14.003(a) (Vernon

2002). In determining whether a claim is

frivolous or malicious, the court may consider whether the claim = s

realistic chance of ultimate success is slight, whether the claim has no

arguable basis in law or in fact, whether it is clear that the party cannot

prove facts in support of the claim, and whether the claim is substantially

similar to a previous claim filed by the inmate because the claim arises from

the same operative facts. Id . ' 14.003(b).

Trial courts are given broad discretion to

determine whether an inmate = s in

forma pauperis suit should be dismissed because (1) prisoners have a

strong incentive to litigate; (2) the government bears the cost of an in

forma pauperis suit; (3) sanctions are not effective; and (4) the

dismissal of unmeritorious claims accrues to the benefit of state officials,

courts, and meritorious claimants. Montana

v. Patterson , 894 S.W.2d 812 , 814 B 15 (Tex.

App. C Tyler

1994, no writ); see also Pittman v. Dep = t of

Criminal Justice B Inst. Div. , No.

14-99-00696-CV, 2000 WL 1752799 , at *2 (Tex. App. C Houston

[14th Dist.] Nov. 30, 2000, no pet.) (not designated for publication)

(reasoning that a trial court may dismiss an inmate suit on the court = s own

motion without a formal motion to dismiss from the defendant) (citing Hicks

v. Brysch , 989 F. Supp. 797, 815 (W.D. Tex. 1997)). We thus review a trial court = s

dismissal of an inmate = s claim under chapter 14 under

an abuse of discretion standard. [3] Williams , 250 S.W.3d at 158 ; Thomas

v. Wichita Gen. Hosp. , 952 S.W.2d 936, 939 (Tex. App. C Fort

Worth 1997, pet. denied). A trial court

abuses its discretion if it acts arbitrarily, capriciously, and without

reference to guiding rules or principles.

Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238 , 241 B 42 (Tex.

1985), cert. denied , 476 U.S. 1159 (1986). We will affirm the dismissal if it was proper

under any legal theory. Johnson v.

Lynaugh , 796 S.W.2d 705 , 706 B 07 (Tex.

1990); Birdo v. Ament , 814 S.W.2d 808, 810 (Tex. App. C Waco

1991, writ denied); Rhodes v. Poland , No. 12-08-00060-CV, 2008 WL

4491468 , at *1 B 2 (Tex. App. C Tyler Oct.

8, 2008, pet. denied) (affirming trial court = s order C which

dismissed inmate = s chapter 14 suit as frivolous C on the

ground that government code section 508.0441 does not conflict with article IV,

section 11 of the Texas constitution).

In this case, the trial court could have

concluded that all of Peters = s claims

are frivolous or malicious because they have no arguable basis in law. See Tex. Civ. Prac. & Rem. Code

Ann. ' 14.003(a),

(b)(1). Specifically, Peters did not

direct the trial court, nor does he now direct this court, to any statutory or

common law cause of action for failure to investigate and prosecute an alleged

criminal offense. [4] In the absence of such an action, Peters = s claims

have no basis in law.

To the extent that Peters asserted claims under

the Texas Tort Claims Act ( A TTCA @ ), the

TTCA waives a governmental unit = s

immunity from liability and suit in three narrowly defined areas: (1) property damage and personal injury

caused by the use of publicly owned automobiles; (2) personal injury

caused by a condition or use of tangible personal or real property; and

(3) claims arising out of premises defects. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021

(Vernon 2005), ' 101.022 (Vernon Supp. 2008), ' 101.025

(Vernon 2005); Tex. Dep = t of

Parks and Wildlife v. Miranda , 133 S.W.3d 217, 225 (Tex.

2004). Peters = s claims

seeking to impose liability against Appellees do not fit within any of the

above three limited waivers of immunity.

To the that extent Peters = s

petitions can be construed to allege violations of 42 U.S.C. ' 1983 [5]

against any of the defendants, qualified immunity is immunity from suit

available to government officials sued in their individual capacities under ' 1983. Harlow v. Fitzgerald , 457 U.S. 800,

818 , 102 S. Ct. 2727, 2738 (1982).

Government officials performing discretionary functions are protected

from civil liability under the doctrine of qualified immunity if their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known. Poteet

v. Sullivan , 218 S.W.3d 780, 787 (Tex. App. C Fort

Worth 2007, pet. denied). Appellees = alleged

failure to investigate Peters = s

complaints regarding stolen property or file charges on those complaints did

not violate a clearly established statutory or constitutional law or right.

To the extent that Peters = s

petitions can be construed to merely allege common law fraud claims against

Appellees, [6]

in light of the entire record, the trial court could have concluded that his

realistic chances of ultimate success on those claims were slight or that the

claims have no arguable basis in fact. See

Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b)(1),

(2).

We hold that the trial court did not abuse its

discretion by dismissing Peters = s claims

against Appellees. See id. ' 14.003(a)(2). We overrule Peters = s issues

and affirm the trial court = s

judgments.

PER

CURIAM

PANEL: MEIER, J.; CAYCE, C.J.; and DAUPHINOT, J.

DELIVERED: August 28, 2009

[1] See Tex. R. App. P. 47.4.

[2] The trial court appointed

an attorney to represent Peters in this appeal, but after the briefs were

filed, Peters filed numerous motions, one complaining of a conflict of interest

between his appointed attorney and him.

We granted his request that his appointed counsel be withdrawn, denied

all other requested relief, and gave him an opportunity to file a new

brief. Peters did not timely file a

brief; so, as we had notified him that we would in the absence of new briefs,

we relied on the briefs already on file to resolve the appeals.

[3] While dismissal is

reviewed under an abuse of discretion, the issue as to whether there was 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.), cert. denied , 513 U.S. 964 (1994) (explaining that questions

of law are reviewable de novo).

[4] The Fifth Circuit has

reasoned that the alleged failure to investigate complaints and to take action

in response to them does not provide a basis for a civil rights suit. Robinson v. U.S., Fed. Bureau of

Investigation , 185 Fed. Appx. 347, 348 (5th Cir. 2006).

[5] Section 1983 provides a

remedy when any person acting under color of state law deprives another of

rights, privileges, or immunities protected by the United States Constitution

or laws. 42 U.S.C.A. ' 1983 (West 2003).

[6] Peters states repeatedly

in correspondence that his case is about fraud.