Presiado v. Sheffield

*276 DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. The dismissal order should be modified to reflect the dismissal is without prejudice, and affirmed as modified.

Chapter 14 applies to inmate litigation in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See Tex. Civ. Prac. & Rem.Code Ann. § 14.002 (Vernon 2002). The statute apparently “was designed to control the flood of frivolous lawsuits being filed in the courts of this State by prison inmates, consuming valuable judicial resources with little offsetting benefit.” Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ). The trial court has the authority to dismiss a lawsuit governed by the statute before or after process is served, with or without a hearing, if the court finds the claim is frivolous or malicious. See Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a)(c) (Vernon 2002). In determining whether the claim is frivolous or malicious, the court “may consider whether ... (2) the claim has no arguable basis in law or in fact[.]” Id. § 14.003(b).

The trial court’s determination of frivolousness is a discretionary one, and is reviewed on appeal for abuse of that discretion. See Moore v. Zeller, 153 S.W.3d 262, 263 (Tex.App.-Beaumont 2004, pet. denied). The trial court essentially must determine whether Chapter 14 permits the lawsuit to proceed on the basis of the affidavit or unsworn declaration of inability to pay costs filed by the inmate. The discretionary dismissal here is not an adjudication on the merits. See, e.g., Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 273-74 (Tex.App.-Texarkana 2003, no pet.); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001, no pet.). Generally, the order dismissing a suit under Chapter 14 does not bar a subsequent paid petition, which would fall outside the scope of Chapter. 14. See generally Denton v. Hernandez, 504 U.S. 25, 34 , 112 S.Ct. 1728 , 118 L.Ed.2d 340 (1992) (Under a similar federal statute, the United States Supreme Court explained: “[T]he dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in for-ma pauperis petitions.”) (citations omitted). A dismissal order under Chapter 14 should generally be without prejudice. See, e.g., Mullins, 111 S.W.3d at 274 ; Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The order here should be modified to reflect that the dismissal is without prejudice.

The dismissal of this claim was not an abuse of the trial court’s discretion. The order is not arbitrary or unreasonable, and the trial court did not act without reference to any guiding principles. See Hickson, 926 S.W.2d at 398-399 (abuse of discretion standard of review). “That an appellate court might have decided a matter within the trial judge’s discretion in a different manner does not demonstrate that an abuse of discretion has occurred.” Id. at 399 .

The inmate’s theft claim against the defendants in their official capacity does not have an arguable basis in law because an illegal or unauthorized act of an individual is not an act of the governmental unit. See generally Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997), superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little-Tex. Insulation Co., 39 S.W.3d 591, 593 (Tex.2001) (“A state official’s illegal or unauthorized actions are not acts of the State.”). Sovereign immunity does not bar theft allegations as a matter of law against these defendants because the inmate’s claims are *277 necessarily asserted against the defendants in their individual capacities. See generally Harrison v. Tex. Dep’t of Criminal Justice-Institutional Div., 915 S.W.2d 882, 888 (Tex.App.-Houston [1st Dist.] 1995, no writ). Nonetheless, a theft claim may be frivolous because it is not arguable in fact.

The issue here is whether the trial judge could, without a hearing, dismiss the claim. This Court and others have said that under Chapter 14 a trial court may not, without a hearing, dismiss an inmate’s claim on the ground that the claim has no arguable basis in fact. See Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 658 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Gordon v. Scott, 6 S.W.3d 865, 369 (Tex.App.-Beaumont 1999, pet. denied). That approach overlooks the language and purpose of the statute. The statute does not require a hearing, and the dismissal only precludes a claim from proceeding under Chapter 14. See Tex. Civ. Prac. & Rem.Code Ann. §§ 14.002,14.003(c) (Vernon 2002). The ruling here is not an adjudication following a trial or summary judgment procedure. Essentially, the statute gives a trial judge broad and unusual authority to look behind the curtain of factual allegations in a case governed by Chapter 14, and dismiss as frivolous a claim making factual allegations that are clearly baseless, irrational, delusional, or fanciful. That determination may not require a hearing in every case, as the statute recognizes.

In this case, the trial court was presented with the file of the grievance claim process, including an inventory of property signed by the inmate and statements made by the inmate concerning his claim. The judge could compare the factual allegations in Presiado’s pleadings with those documents. The file reflects that on a routine search of Presiado’s cell, contraband items were found. Confiscated items that were not contraband were subsequently returned to the inmate, and he signed an inventory. The work sheet prepared following an investigation of his complaint states that several items were confiscated because of “altered property or questionable ownership.” The document states, “Your property was inventoried on 6/3/05 and you signed the Prop-05 indicating the inventory was correct. There is no evidence to support your claims.” From this information, the trial court could reasonably decide whether the claim was against the defendants in their official capacity, and could conclude the allegations were frivolous. I see nothing arbitrary or unreasonable in the trial judge’s decision.