Ray Warmsley v. Janie Cockrell et al--Appeal from 104th District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Ray Warmsley

Appellant

Vs. No. 11-02-00075-CV C Appeal from Taylor County

Janie Cockrell et al

Appellees

Ray Warmsley appeals from the trial court=s order dismissing his cause of action. On November 7, 2001, appellant, an inmate in the French Robertson Unit of the Texas Department of Criminal Justice - Institutional Division (TDCJ-ID), filed a class action suit against Janie Cockrell, Director of the TDCJ-ID, and James Duke, Warden of the French Robertson Unit, for allegedly violating his constitutional right to visitation with family and friends and denying him hot meals, showers, and recreation during prison Alockdowns.@ Appellant sought a declaratory judgment that the appellees= acts and omissions violated the United States and Texas Constitutions. Appellant also sought permanent injunctions prohibiting the appellees from violating the United States and Texas Constitutions and from punishing inmates for incidents in which they are not involved and prohibiting Duke from serving in his position as Warden of the French Robertson Unit. On February 8, 2002, upon the appellees= motion, the trial court found the cause of action to be frivolous and dismissed the cause with prejudice. We affirm.

Appellant brings four issues on appeal, arguing that the trial court erred in dismissing his class action lawsuit. Appellant contends that the trial court should have held a fact-finding hearing and that the dismissal denies him access to the courts. Appellant also complains that the trial court=s dismissal denied him, his family, and friends the right to visitation under the United States and Texas Constitutions.

Chapter 14 of the Texas Civil Practice and Remedies Code governs suits brought by an inmate who files an affidavit or unsworn declaration of inability to pay costs, except for suits brought under the Family Code. TEX. CIV. PRAC. & REM. CODE ANN. ' 14.002 (Vernon Supp. 2002). The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. ' 14.003(a)(2) (Vernon Supp. 2002); Jackson v. Texas Department of Criminal Justice Institutional Division, 28 S.W.3d 811, 813 (Tex.App. - Corpus Christi 2000, pet=n den=d); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App. - Houston [1st Dist.] 1998, no pet=n). In determining whether a claim is frivolous or malicious, the trial court may consider whether:

(1) the claim's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact;

(3) it is clear that the party cannot prove facts in support of the claim; or

(4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.

TEX. CIV. PRAC. & REM. CODE ANN. ' 14.003(b) (Vernon Supp. 2002). When reviewing a dismissal under Chapter 14, the standard of review on appeal is for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App. - Waco 1996, no writ). Abuse of discretion is determined by whether the trial court acted without reference to any guiding principles. Hickson v. State, supra. The trial court may, in its discretion, conduct a hearing to determine whether the inmate's suit is frivolous. TEX. CIV. PRAC. & REM. CODE ANN. ' 14.003(c) (Vernon Supp. 2002). Appellant has not shown that he would have presented evidence had a hearing been held; therefore, the trial court did not abuse its discretion by dismissing appellant=s cause of action without conducting a hearing. Hall v. Treon, 39 S.W.3d 722 (Tex.App. - Beaumont 2001, no pet=n). The trial court=s order states that the trial court considered all of the pleadings filed by the parties and determined that the cause was frivolous. Appellant has not shown that the trial court abused its discretion. We have considered all of appellant=s issues on appeal, and we overrule all of appellant=s arguments on appeal.

The judgment of the trial court is affirmed.

PER CURIAM

August 15, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.