Rieck, Ex Parte George William Jr.

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.74,799

EX PARTE GEORGE WILLIAM RIECK, JR., Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM VICTORIA COUNTY

Keller, P.J., delivered the opinion for the unanimous Court.

O P I N I O N

We filed and set this application for writ of habeas corpus to determine whether the "Forfeiture of

Good Conduct Time: Frivolous Lawsuits" statute applies to Article 11.07 (1) habeas corpus proceedings.

On our own motion, we asked the parties to brief the issue. We hold that the statute does not apply in the

habeas context.

I. BACKGROUND

In 1992, applicant pled nolo contendere to indecency with a child and was sentenced to sixteen

years imprisonment and a $750 fine. Since that conviction, applicant has filed twenty-one applications for

writ of habeas corpus, many of which have been dismissed pursuant to Article 11.07 §4. (2) In this

application, he complains about the time credit consequences of his 1999 parole revocation. These claims

are identical to those raised in his sixteenth application.

II. ANALYSIS

A. General principles

In construing a statute, we confine our analysis to the plain meaning of the text, unless the language

is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly

intended. (3) When we are called upon to go beyond the plain meaning of the statutory text, we may consider

various extratextual factors. (4) Those factors include but are not necessarily limited to: (1) the object sought

to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4)

common law or former statutory provisions, including laws on the same or similar subjects, (5) the

consequences of a particular construction, (6) administrative construction of the statute, and (7) the title

(caption), preamble, and emergency provision. (5)

B. The statute

TEX GOVT CODE §498.0045(a) provides:

In this section, "final order" means a certified copy of a final order of a state or federal

court that dismisses as frivolous or malicious a lawsuit brought by an inmate while the

inmate was in the custody of the department or confined in county jail awaiting transfer to

the department following conviction of a felony or revocation of community supervision,

parole, or mandatory supervision.

On receipt of a final order, the Texas Department of Criminal Justice is to forfeit certain designated periods

of time, which may not later be restored. (6)

We have not had occasion to analyze the statute before now, but we have referred to its language.

In dicta in Jones v. State , we said: "Writ applications dismissed under section 4 may, in appropriate cases,

be dismissed with a final order declaring the lawsuit frivolous." (7) But we did not invoke the statute's

provisions or even cite to it in Jones , let alone analyze it. Faced now with the potential applicability of the

statute to habeas proceedings, we conduct an analysis.

C. Plain or ambiguous?

Does an Article 11.07 habeas corpus proceeding constitute a "lawsuit" for the purpose of the

statute? Words should be defined in accordance with any technical or particular meaning acquired by

legislative definition or otherwise. (8) In determining the plain meaning of a word, we initially look to

dictionary definitions. (9) Since "lawsuit" is a legal term, we shall look to definitions from legal dictionaries.

Merriam-Webster's Dictionary of Law defines "lawsuit" as "an action brought in a court for the

purpose of seeking relief from or remedy for an alleged wrong." (10) This definition would appear to include

postconviction habeas proceedings. (11) But definitions from other legal dictionaries are not as favorable to

that proposition.

Black's Law Dictionary defines "lawsuit" as a "suit" and defines "suit" as: "Any proceeding by a

party or parties against another in a court of law." (12) Whether a habeas proceeding is a proceeding by one

party against another is questionable. Habeas proceedings in Texas are styled " ex parte ," which means,

"Done or made at the instance and for the benefit of one party only , and without notice to, or argument

by, any person adversely interested." (13) On the other hand, as a matter of statute and practical fact, an

Article 11.07 habeas corpus proceeding does involve a party adverse to the applicant - the State - which,

contrary to what occurs in traditional ex parte proceedings, is given notice and the opportunity to

respond. (14)

Some legal dictionary definitions cast doubt on the propriety of using the term "lawsuit" to describe

criminal proceedings. Citing the Michigan Supreme Court case of Patterson v. Standard Accident Ins.

Co. , (15) Ballentine's Law Dictionary defines "lawsuit" as: "An action or proceeding in a civil court in law or

equity, but not a criminal prosecution." (16) And Barron's Law Dictionary, citing Kohl v. United States (17)

and Patterson, equates "lawsuit" with "suit," and defines the term more expansively, saying that it could

be used to describe criminal proceedings but is more appropriate for civil proceedings. (18)

In Patterson , an insured involved in an automobile accident was prosecuted for manslaughter. (19)

The insurance policy provided that the insurance company would defend the insured in any "suits" brought

against him on account of the accident. (20) The insured claimed that "suits" included criminal prosecutions,

while the insurance company interpreted the term "suits" to refer only to civil actions. (21) Ruling in favor of

the insurance company, the Michigan Supreme Court held that the word "suits" in the insurance policy did

not extend to criminal prosecutions. (22) The Michigan court acknowledged that the word "suit" enjoyed

broad usage, including being applied to a criminal prosecution in some contexts, but that application to

criminal proceedings was disfavored. (23) The court also looked at the specific context before it and

concluded that its interpretation of "suits" as meaning "civil suits" conformed to the purpose of automobile

insurance contracts. (24) Two cases involving a corporation's right to prosecute and defend "suits" after

dissolution have relied on or cited Patterson to determine that "suits" applies only to civil proceedings. (25)

The construction of the word "suit" in these cases and others, (26) and the dictionary definitions of

"suit" and "lawsuit" derived from the cases, are attempts to determine the meaning of a word by looking

at its context and common usage - tools of construction that are well recognized in Texas. (27) An

examination of our own prior cases shows that the word "lawsuit" has been used to refer to a criminal

prosecution in connection with a wide variety of issues. (28) Our use of the word "lawsuit" to refer generally

to both civil and criminal actions was evident in Taylor , where we held that it was not permissible for

attorneys representing the same party to take conflicting positions: "The District Attorney does not point

to any other court that is called on in any case to entertain conflicting decisions made by two attorneys

representing one party to a lawsuit." (29) Moreover, participants in criminal trials often refer to the criminal

prosecution as a "lawsuit." (30) In numerous cases we have referred to a civil action as a "civil lawsuit" (31)

while we have found just a few cases referring to a "criminal lawsuit," or a synonym thereof. (32) Although

this may indicate that the use of the word "lawsuit" is much more common in connection with civil

proceedings, it nevertheless supports the proposition that the word "lawsuit" can sometimes broadly refer

to both civil and criminal actions.

However, while "lawsuit" is used in its broad meaning in our cases, statutory references to the word

almost uniformly involve the more narrow use as a description of civil actions. (33) Excluding the statute under

consideration in this case and related statutes, (34) the only possible exceptions appear to be the statute

describing the barratry offense in the Penal Code and a Water Code statute that may refer to criminal

offenses committed under that code. (35)

The United States Supreme Court has, at times, used the word "suit" or "lawsuit" broadly. In

Kohl , the Supreme Court defined "suit" in relation to the expansive federal jurisdiction created by the

Judiciary Act of 1789. (36) And in the context of the federal statute authorizing the filing of in forma pauperis

actions, the Supreme Court has referred to the word "lawsuit" in connection with both criminal and civil

actions. (37)

Regardless of how one resolves the meaning of the word "lawsuit," whether habeas proceedings

in particular can be properly characterized as lawsuits is unclear. In addition to this Court's own casual

reference to a habeas corpus proceeding as a "lawsuit," (38) there is the pronouncement by the United States

Supreme Court in Kohl that expressly includes habeas corpus within its own list of proceedings that

constitute "suits." (39) However, implicitly utilizing the Black's Law Dictionary definition of "suit" as an action

by one party against another, the Texas Attorney General has concluded that "there is no consensus on

whether habeas corpus is a 'suit' or 'action.'" (40) In connection with this conclusion, the Attorney General

cited the Texas Supreme Court case of Ex parte Ramzy and several out-of-state cases for the proposition

that habeas corpus is not a "suit" but instead a "summary remedy." (41)

To the extent that the criminal nature of a proceeding might be a stumbling block to characterizing

the proceeding as a lawsuit, it should be observed that most jurisdictions have traditionally regarded habeas

corpus as a civil remedy, even when the relief sought is from confinement in the criminal justice system. (42)

Yet courts have struggled with how to characterize habeas proceedings and have sometimes characterized

them as "neither civil nor criminal but rather sui generis " or "an exercise of special constitutional and

statutory jurisdiction." (43) The United States Supreme Court has conceded that habeas corpus proceedings

are characterized as "civil" but called that label "gross and inexact," stating that, "Essentially, the proceeding

is unique." (44) And while a habeas proceeding is considered in Texas to be separate from the criminal

prosecution - being a collateral, rather than direct, attack on the judgment of conviction (45) - Texas has gone

further in eschewing the civil label for habeas proceedings arising from criminal prosecutions or convictions.

Such proceedings are categorized as "criminal" for jurisdictional purposes, and the Texas Rules of Civil

Procedure do not ordinarily apply. (46) Article 11.07 habeas proceedings are categorized as criminal

proceedings by statute. (47)

At this point, it is apparent that the word "lawsuit" is ambiguous. While the word may embrace

habeas corpus proceedings, we cannot conclude from the statute itself that it does.

D. Extratextual factors

We turn, then, to extratextual factors. We begin with the legislative history, which is fairly

extensive. On the House floor, Representative Allen Hightower, the sponsor of the bill, H.B. 1343, began

by stating, "What this bill does is it tracks a new federal system called the 'Spears' method." (48) He

continued by summarizing the various aspects of the bill, including the good-time forfeiture provision. (49)

Representative Hightower's "Spears" comment appears to be a reference to the Fifth Circuit's

opinion in Spears v. McCotter . (50) In that case, an inmate filed in federal district court a pro se , in forma

pauperis §1983 civil-rights complaint against the Texas Department of Corrections for subjecting him to

cruel and unusual punishment by requiring him to perform work beyond his physical capacity and by not

affording him proper medical attention. (51) Although both parties demanded a jury trial, the case was

referred to a magistrate for an evidentiary hearing without a jury. (52) The magistrate recommended that the

case be dismissed, and the district court adopted the magistrate's recommendation. (53)

The Fifth Circuit held that referring the petition to a magistrate was proper and that the magistrate

could determine, without a jury trial, whether the complaint was frivolous and should be dismissed. (54) The

Fifth Circuit further found that, pursuant to 28 U.S.C. §1915 (d), a frivolous in forma pauperis action

could be dismissed without a jury determination, and it recommended the use of such a procedure to

winnow out the growing number of inmate cases. (55) The United States Supreme Court later indicated that

a fast-track method of dismissing frivolous in forma pauperis actions was desirable because of the lack

of economic disincentive to filing such actions. (56) The Supreme Court also recognized that inmate

complaints could be filed "as a means of gaining a 'short sabbatical in the nearest federal courthouse.'" (57)

A reading of subsections (a) and (d) of §1915 together (1979 version) (58) makes clear that the ability

to dismiss frivolous actions was not limited to civil complaints, but applied to both "civil" and "criminal"

proceedings. (59) However, that statute was not limited to "suits" or "lawsuits" but broadly encompassed "any

suit, action or proceeding, civil or criminal, or appeal therein." (60) Additionally, the statute was not

specifically directed at inmate lawsuits. (61) Spears (and Neitzke ) addressed the statute in the context of the

problem of inmate civil litigation. (62) So Representative Hightower's reference to Spears does not in itself

provide any clear guidance about whether the forfeiture statute was intended to apply beyond the realm

of civil litigation, although the policy reasons articulated in the federal cases may be relevant to our inquiry.

The House Committee report on H.B. 1343 began by listing seven examples of frivolous lawsuits,

all of which were civil actions, initiated by an inmate-plaintiff, not habeas proceedings. (63) The report then

stated: "These cases, and the hundreds like them, take time away from the business and resources of the

Department of Criminal Justice, and from the resources of the Attorney General's office." (64) The Attorney

General is charged with defending the State, its officers, and its institutions in civil actions (65) but is not

ordinarily assigned the responsibility to respond to Article 11.07 postconviction applications for writ of

habeas corpus in Texas state courts - a task largely performed by district attorneys' offices. (66) The House

Committee report explained that 659 inmate cases were opened by the Attorney General's office in 1993

and another 994 cases were opened in 1994. (67) The report further stated that the sixteen most prolific

inmate litigators had filed 498 cases. (68) From the context of the report, it is clear that these were all civil

cases. (69) The report also explained that the bill contained a number of provisions to combat inmate lawsuits,

including a new chapter in the Civil Practice and Remedies Code to enable the efficient disposition of

frivolous civil actions, a monetary disincentive to filing such actions, and the statute in question, which

permits the forfeiture of good-conduct time for filing frivolous lawsuits. (70) The Senate Committee report

briefly repeated some of the statements made in the House report. (71)

The House and Senate committee hearings are replete with references to civil actions, the need to

curb those actions, and the bill's design to do so. (72) In the House hearing, Representative Hightower

pointed out that "many times these frivolous lawsuits are filed just for the purpose to get a day away from

the unit," (73) an event that does not ordinarily occur in habeas proceedings. (74) An unidentified representative

asked Ann Kraatz, of the Attorney General's Office, why Texas Rule of Civil Procedure 13, "which

prohibits frivolous lawsuits and provides sanctions" could not be used to combat frivolous inmate litigation. (75)

Her answer, and the remarks of other witnesses, indicated that Rule 13 contemplates service of process, (76)

which, under §14.003, could be avoided, (77) and that indigent inmates could not be deterred by monetary

sanctions. (78)

Not one person in the hearings ever indicated that the statute might apply to applications for writ

of habeas corpus, or to any criminal proceedings. (79) In fact, there is one passage to the contrary. Maxine

Barnette, representing Anderson County, referred briefly to the "abuse of the writ doctrine," testifying that,

"on the criminal side of the law, the appeals court has limited what they call abuse of the writ." (80) She

remarked that "the time has come to address" the issue "in the civil area, too." (81) Moreover, the

provision at issue in this case was just one aspect H.B. 1343's effort to curb frivolous lawsuits. The bill

created several other statutes, found in the Civil Practice and Remedies Code, that illustrate the bill's

exclusive focus on civil actions. Although placement in the Civil Practice and Remedies Code does not

automatically preclude application of a given statute to criminal or habeas proceedings, (82) the specific

characteristics of these particular statutes make their exclusively "civil" focus clear.

First, the bill added a venue provision regarding inmate litigation to the Civil Practices and

Remedies Code but added no comparable provision to the Code of Criminal Procedure. (83) This provision,

placed in a chapter that assigns venue to various civil proceedings, (84) referred to "an action that accrued

while the plaintiff was housed in a Texas prison facility." (85) A habeas claim is not ordinarily thought to

"accrue" while the inmate is housed in prison because habeas claims challenge the fact or duration of

confinement (or restraint) rather than the conditions of confinement. (86) Moreover, the term "plaintiff" is

foreign to Article 11.07 jurisprudence, as the proper term for an inmate applying for relief under the statute

has been either "petitioner" (87) or "applicant." (88)

Second, the bill created Chapter 14 of the Civil Practices and Remedies Code to provide fast-track

procedures for handling and dismissing frivolous claims, and which outlines standards for determining

whether a lawsuit is frivolous. (89) No criminal counterpart was enacted at that time or otherwise exists.

Enacting guidelines for civil cases but not for criminal habeas actions is further evidence that the Legislature

did not intend the forfeiture provision to apply in the criminal habeas context. Yet another indication that

Chapter 14 was meant to apply only to civil actions is suggested by §14.014, which prohibits modification

of the Chapter by Texas Supreme Court rule.

Third, §14.002, entitled "Scope of Chapter," provides: "This chapter applies only to a suit brought

by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or

unsworn declaration of inability to pay costs is filed by the inmate." (90) The significance of this statement

is that Chapter 14's remedies involving the screening and dismissal of frivolous lawsuits apply only to

lawsuits in which the costs have been waived due to indigence. In the civil system, a plaintiff is ordinarily

required to pay filing and service fees before a lawsuit will be docketed by the court clerk. (91) Those fees

are waived if the plaintiff files an affidavit (or unsworn declaration) of inability to pay the costs. (92) As

discussed earlier, payment of fees is a financial disincentive to filing a frivolous lawsuit. As with the federal

statute discussed earlier, the idea behind §14.002 is that inmates who can file lawsuits for free have no such

disincentive and must, therefore, be subject to more rigorous procedures designed to screen out and

dispose of frivolous actions.

That type of reasoning does not apply well in the state habeas context. Currently, the Code of

Criminal Procedure prohibits the court clerk from requiring a filing fee for habeas corpus applications. (93)

That provision did not exist in 1995, when H.B. 1343 was enacted, and the bill analysis for the 1999 filing

fee prohibition suggests that it was enacted because filing fees could be exacted from habeas applicants. (94)

Nevertheless, we are unaware of any prevailing practice of district clerks in 1995 to require filing fees for

postconviction habeas corpus actions, and a 1994 Attorney General opinion stated that, while the district

clerk was authorized under a catch-all provision to charge a "reasonable fee," (95) failure to pay a fee - or

file an affidavit of inability to pay - was not a ground for refusing to file a habeas application or for refusing

to issue process under that application. (96) So the filing fee (or affidavit of inability to pay) did not serve the

gatekeeping function in habeas cases that it serves in civil cases.

Aside from the legislative history, there are other extratextual factors, but these carry little weight.

We recognize that in 1996 the Mississippi Legislature passed a statute that is almost identical to the Texas

good-time forfeiture provision (97)

and that the Mississippi Supreme Court has upheld the application of that

statute to habeas corpus actions. (98) But the focus of the Mississippi Supreme Court was solely on whether

the applicant's claim was frivolous and whether the forfeiture of good time was constitutional; that court

did not address why the statute was applicable to habeas corpus proceedings. (99) The Texas statute was

passed before the Mississippi statute, and of course, before any Mississippi Supreme Court decision

construing the statute; so, the Texas Legislature could not have been charged with notice of the parallel

provision or of the Mississippi Supreme Court's implied construction of that provision. While the

Mississippi Supreme Court's opinion is something to be considered, its decision cannot weigh heavily in

our analysis in the face of overwhelming legislative history pointing to a civil-only focus for the Texas

forfeiture provision.

Finally, we observe that the evident purpose of the forfeiture statute - to reduce frivolous litigation

- would be served by the statute's application to habeas proceedings. Every year, this Court is inundated

with post-conviction habeas filings. In spite of the enactment of the abuse of the writ provisions of Article

11.07 §4, application numbers have continued to climb. In fiscal year 1995, 3,996 applications were filed

in this Court; in fiscal year 2003, that number increased to 6,660. (100)

Yet, if the Legislature had intended for this statute to be used to reduce frivolous habeas

applications, there could have been at least some mention of it in the legislative history. The legislative

history is replete with the need to combat the tide of frivolous civil litigation and the statute's purpose in

achieving that goal. If the Legislature had intended to serve the parallel goal of reducing frivolous habeas

corpus applications, it would have been easy for someone, somewhere in the process, to have said so.

Instead, the only mention of habeas proceedings is the suggestion that the issue of frivolous habeas actions

had been addressed by §4 and that the gap that remained to be filled was with regard to civil cases.

However useful this statute could be if applied to habeas proceedings, (101) we conclude that the

Legislature did not contemplate its use in that context. We hold that §498.0045 does not apply to Article

11.07 habeas corpus proceedings.

Applicant's present application for writ of habeas corpus is barred as a subsequent application

under Article 11.07 §4. This application is dismissed.

KELLER, Presiding Judge

Date delivered: September 15, 2004

Publish

1. All references to Article 11.07 are to the Code of Criminal Procedure.

2. Art. 11.07 §4(a) bars consideration of subsequent applications unless certain requirements are

met.

3. Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

4. Id.

5. TEX. GOV'T CODE §311.023; Brown v. State , 943 S.W.2d 35, 38 (Tex. Crim. App.

1997).

6. TEX. GOVT CODE §498.0045(b).

7. 97 S.W.3d 586, 589 (Tex. Crim. App. 2003).

8. TEX. GOV'T CODE § 311.011(b).

9. Lane v. State , 933 S.W.2d 504, 515 , 515 n. 12 (Tex. Crim. App. 1996).

10. MERRIAM-WEBSTER'S DICTIONARY OF LAW (1996).

11. Art. 11.01 ("The writ of habeas corpus is the remedy to be used when any person is

restrained in his liberty"); Art. 11.07 §1 ("in which the applicant seeks relief from a felony judgment

imposing a penalty other than death").

12. BLACK'S LAW DICTIONARY 895 & 1448 (7 th ed. 1999).

13. BLACK'S LAW DICTIONARY 597 (7 th ed. 1999)(adjective definition)(emphasis

added); see also , Ex parte Ramzy , 424 S.W.2d 220, 223 (Tex. 1968)("A procedure by habeas

corpus to be relieved of imprisonment for contempt can in no legal sense be regarded as a suit or

controversy between private parties. In such a proceeding the petition for a writ of habeas corpus is for

the relief of the prisoner and the prisoner only").

14. See Art. 11.07 §3(b)("The clerk . . . shall . . . forward a copy of the application . . . to the

attorney representing the state in that court, who shall answer the application not later than the 15 th day

after the date the copy of the application is received").

15. 178 Mich. 288 , 144 N.W. 491 (1913).

16. BALLENTINE'S LAW DICTIONARY 715 (3 rd ed. 1969).

17. 91 U.S. 367 (1876).

18. BARRON'S LAW DICTIONARY 264 & 463 (2 nd ed. 1984).

19. 144 N.W. at 491 .

20. Id. at 492.

21. Id. at 491-492.

22. Id. at 492-493.

23. Id. at 492.

24. Id. at 493.

25. United States v. Safeway Stores, Inc. , 140 F.2d 834, 838 (10 th Cir. 1944); United

States v. P.F. Coller & Son Corp. , 208 F.2d 936, 938-939 (7 th Cir. 1953).

26. Commonwealth v. Moore , 143 Mass. 136 , 9 N.E. 25, 26 (1886)("suit" includes criminal

proceedings for purposes of statute qualifying jurors); Kelliher v. People , 71 Colo. 202 , 205 P. 274 -275 (1922)( "suit" includes criminal proceedings for purposes of statute relating to the duties of sheriffs

and coroners).

27. See TEX. GOVT CODE §311.011(a); Jones v. State , 979 S.W.2d 652, 657 (Tex. Crim.

App. 1998).

28. See , e.g., Aldrich v. State , 104 S.W.3d 890, 895 (Tex. Crim. App. 2003(guilty pleas); Ex

Parte Taylor , 101 S.W.3d 434, 440 (Tex. Crim. App. 2002)(collateral estoppel); Ex Parte Taylor ,

36 S.W.3d 883, 887 (Tex. Crim. App. 2001)(proceedings before the Court of Criminal Appeals).

29. Taylor , 36 S.W.3d at 887 .

30. See , e.g., Miller v. State , 36 S.W.3d 503, 506 (Tex. Crim. App. 2001)(trial court);

Rhoades v. State , 934 S.W.2d 113, 125 (Tex. Crim. App. 1996)(defense counsel); Fuentes v. State ,

664 S.W.2d 333, 337 (Tex. Crim. App. 1984)(prosecutor).

31. See , e.g., Kellar v. State , 108 S.W.3d 311, 312 (Tex. Crim. App. 2003); Soliz v. State ,

97 S.W.3d 137, 138 (Tex. Crim. App. 2003); Thompson v. State , 93 S.W.3d 16, 21 (Tex. Crim.

App. 2001), cert. denied , 124 S. Ct. 250 (2003).

32. Gordon v. State , 801 S.W.2d 899 , 915 n. 16 (Tex. Crim. App. 1990)("criminal lawsuit");

Thomas v. Crow , 862 S.W.2d 719, 722 (Tex. App.-Tyler 1993, no writ)(same); Hunt v. State , 160

Tex. Crim. 358 , 271 S.W.2d 290, 292-293 (1954)("misdemeanor lawsuit").

33. TEX. AGRIC. CODE §§74.1041(d), 74.129; TEX. BUS. & COM. CODE §15.05(h);

TEX. CIV. PRAC. & REM. CODE §§8.02, 15.002(a), 15.003(a), 31.007(a), 33.004(j),

103.105(a)(1), 104.004(b), 109.0015(b); TEX. EDUC. CODE §§51.967, 61.952(3)(A), 132.102(c)

& (d); TEX. FAM. CODE §§8.057(b), 9.001(b), 9.102(b), 9.201(b), 156.004, 157.062(d)(2); TEX.

FIN. CODE §§126.155(a), 392.301(b)(2), TEX. GOVT CODE §§51.943(c) & (d), 495.008(b)(5),

659.151(e), 1501.151; TEX. HEALTH & SAF. CODE §§242.252(b) & (e), 361.405(a)(2); TEX.

HUM. RES. CODE §32.060(h); TEX. INS. CODE §§38.154(a)(3)(B), 38.156(3)(A)(I), 2602.260;

TEX. LABOR CODE §402.084(b)(7);TEX. LOC. GOVT CODE §§41.003(b)(4), 51.003(a)(2),

283.057(a), 335.071(h), 351.016(b)(4)-(6); TEX. NAT. RES. CODE §61.025(a); TEX. OCC.

CODE §§160.052(a)(2), 160.053(a), 164.201, 301.408(b)(2) & (d), 569.001(b), 1958.304; TEX.

PROP. CODE §§5.008(b)(Question 5), 5.023(b), 92.003(a), 92.056(f)(2), 92.301(b)(4), 94.011(a),

94.156(f)(2), 207.003(b)(9), 209.008(e), 221.032(b)(12); TEX. TAX CODE §§5.05(d), 42.09(c),

111.207(a)(1); TEX. WATER CODE §§36.124(a)(2), 49.235(a)(2), TEX. INS., Arts. 9.48 §19(a),

21.21-2 §3(d), 21.28 §4(f) & (h); TEX. PROB. CODE §§146(e)(2), 367(c)(7)(a), 663, 681(4),

741(a), 782(b), 847(l), 852, 887(a) & (e).

34. See TEX. CODE CRIM. PROC. Arts. 42.032 §5(2), 42.09 §9.

35. TEX. PEN. CODE §38.12(d)(2)(D)("lawsuit of any kind"); TEX. WATER CODE

§7.051(a)(2).

36. 91 U.S. at 375-376 .

37. Neitzke v. Williams , 490 U.S. 319, 324 (1989).

38. Ex parte Hoang , 872 S.W.2d 694, 699 (Tex. Crim. App. 1993), cert. denied , 513 U.S.

863 (1994).

39. Kohl , 91 U.S. at 375 .

40. Atty Gen. op. DM-295, 1994 Tex. AG LEXIS 469, *19 (June, 16, 1994).

41. Atty Gen. op. DM-295 at *20-21, *21 n. 13 (citing Ramzy ; Ex parte Tail , 14 N.W.2d

840, 841 (Neb. 1944); Florida ex rel. Deeb v. Fabisinski , 152 So. 207, 209 (Fla. 1933); New York

ex rel. Hauptmann v. Hanley , 274 N.Y.S. 813, 815 (Sup. Ct. 1934), affirmed , New York ex rel.

Hauptmann v. Hanley , 274 N.Y.S. 824 (App. Div. 1934)).

42. Harbison v. McMurray , 138 Tex. 192 , 158 S.W.2d 284, 287 (1942).

43. Atty Gen. op. DM-295 at *22 (citing In rey Moy Chee Kee , 33 F. 377, 379 (C.C.N.D.

Cal. 1887); McFarland v. Johnson , 27 Tex. 105, 109 (1863)).

44. Harris v. Nelson , 394 U.S. 286, 293-294 (1969); see also Atty Gen. op. DM-295 at *24.

45. See , e.g., Ex parte Tuley , 109 S.W.3d 388, 390 (Tex. Crim. App. 2002).

46. Ex parte Davis , 542 S.W.2d 192, 198 (Tex. Crim. App. 1976); See also Ex parte

Donaldson , 86 S.W.3d 231, 233 (Tex. Crim. App. 2002)(Rules of Civil Procedure do not apply to

criminal cases); but see Arnold v. State , 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (applying

TEX. R. CIV. P. 18(a) to criminal cases).

47. Art. 11.07 §5.

48. House floor debates, second reading of H.B. 1343, April 5, 1995.

49. Id.

50. 766 F.2d 179 (5 th Cir. 1985).

51. Id. at 180.

52. Id.

53. Id.

54. Id. at 180-181.

55. Id . at 182.

56. Neitzke , 490 U.S. at 324 (quoting from §1915(d)).

57. Id. at 326 (internal quotes omitted; quoting Cruz v. Beto , 405 U.S. 319, 327

(1972)(Rehnquist, J. dissenting)).

58. The statute was subsequently amended in 1996. We address the 1979 version because that

version was in effect at the time the federal cases in question were decided and at the time the Texas

forfeiture provision was enacted.

59. See §1915(a)(1979).

60. Id.

61. See §1915, passim (1979).

62. See Spears , 766 F.2d at 180 (§1983 action); Neitzke , 490 U.S. at 320 (§1983 action).

63. Committee Report, Texas House Committee on Corrections, C.S.H.B. 1343, March 21,

1995. Examples cited include claims that prison officials failed to return inmate's fireworks, that an

inmate was served chunky peanut butter instead of smooth, and that eggs were not cooked to inmate's

satisfaction.

64. Id.

65. TEX. CIV. PRAC. & REM. CODE §§101.103(a), 104.004; TEX. GOVT CODE

§402.024.

66. Art. 11.07 §3(b)("attorney representing the state in that court").

67. House Committee Report, supra.

68. Id.

69. See id.

70. Id.

71. Amended Committee Report, Texas Senate Committee on Criminal Justice, H.B. 1343,

April 28, 1995.

72. See the respective committee hearings, supra .

73. Rep. Hightower, House Committee Hearing, tape side A, counter 346-348.

74. See Art. 11.07 §3(d)("If the convicting court decides that there are controverted previously

unresolved facts...To resolve those issues the court may order affidavits, depositions, interrogatories,

and hearings, as well as using personal recollection").

75. House Committee Hearing, tape side A, counter 615-617.

76. Id.

77. Texas Acts 1995, 74 th Leg, ch. 378, §2 (§14.003(a)(2))("A court may dismiss a claim,

either before or after service of process , if the court finds that . . . the claim is frivolous or

malicious")(emphasis added).

78. See Michelle Brinkman, House Committee Hearing, tape side B, counter 144-145

("monetary sanctions mean nothing because they have nothing").

79. See the respective committee hearings, passim .

80. House Committee Hearing, February 28, 1995, side A, counter 704-712.

81. Id.

82. See Ex parte Johnson , 811 S.W.2d 93, 97 (Tex. Crim. App. 1991)(applying TEX. CIV.

PRAC. & REM. CODE, Chapter 132 to criminal habeas proceedings).

83. See Acts 1995, 74 th Leg., ch. 378, §1 (creating §15.018); and passim ; see also TEX. CIV.

PRAC. & REM. CODE §15.019 (renumbered by Acts 1997, 75th Leg., ch. 165, § 31.01(3), from

§15.018).

84. See TEX. CIV. PRAC. & REM. CODE, Chapter 15.

85. Texas Acts 1995, 74 th Leg., ch. 378, §1 (§15.018(a))(emphasis added); see also TEX.

CIV. PRAC. & REM. CODE §15.019(a).

86. Ex parte Paprskar , 573 S.W.2d 525, 527 (Tex. Crim. App. 1978), overruled on other

grounds , Weiner v. Dial , 653 S.W.2d 786 , 787 n. 1 (Tex. Crim. App. 1983).

87. TEX. CODE CRIM. PROC. Art. 11.07 §3 (1994).

88. TEX. CODE CRIM. PROC. Art. 11.07 §5 (1995).

89. See Acts 1995, 74 th Leg., ch. 378, §2; TEX. CIV. PRAC. & REM. CODE §14.003.

90. Acts 1995, 74 th Leg., ch. 378, §2; TEX CIV. PRAC. & REM CODE §14.002 (emphasis

added).

91. TEX. R. CIV. P. 142 (filing fee) & 126 (service of process).

92. TEX. R. CIV. P. 126, 142, 145.

93. TEX. CODE CRIM. PROC. Art. 11.051.

94. Texas Office of House Bill Analysis; 76 th Leg., H.B. 149, July 7, 1999. The Bill analysis

stated: "Prior to the 76th Legislature, state law allowed a clerk of a court to require an individual who

filed an application or petition for a writ of habeas corpus to pay a filing fee. H.B. 149 prohibits a clerk

of a court from requiring a person who files an application or petition for a writ of habeas corpus to pay

a filing fee."

95. Atty Gen. op. DM-295, *15 (citing TEX. GOVT CODE §51.319).

96. Id. at *16-*27 (opining that the filing fee requirements of the Rules of Civil Procedure do not

apply). We note that, once the habeas application is under consideration, the judge trying the habeas

corpus action has discretion to assess costs under TEX. CODE CRIM. PROC., Art. 11.50.

97. See Mississippi Laws 1996, ch. 350, § 1 (Miss. Code §47-5-138(3)(a)), Laws 1998, ch.

402 §1 (Miss. Code §47-138(3)(a)).

98. Tubwell v. Anderson , 776 So.2d 654, 659 (Miss. 2000); see also Tubwell v. Grant , 760

So.2d 687, 690-691 (Miss. 2000).

99. See Tubwell , 776 So.2d at 659 ; Tubwell , 760 So.2d at 690-691 .

100. ANNUAL REPORT OF THE TEXAS JUDICIAL SYSTEM (1995: p. 101, 2003: p.

100).

101. The application is unquestionably "frivolous," as that term is understood in §14.003.