David Gene Morris v. R. Burkett, Mail Room Supervisor, TDCJ ID, Hughes Unit--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-91-225-CV

DAVID GENE MORRIS,

Appellant

v.

R. BURKETT, MAIL ROOM SUPERVISOR,

TDCJ ID, HUGHES UNIT,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 26,299

O P I N I O N

David Morris, a prison inmate, filed a pro se petition in forma pauperis alleging that R. Burkett, a prison mail-room clerk, wrongfully withheld and destroyed his Playboy and Celebrity Sleuth magazines. The court dismissed the case before service of process because "the action's realistic chance of ultimate success is slight; [and] the claim has no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1), (2) (Vernon Supp. 1992). We reverse the judgment and remand the cause.

A court has broad discretion when determining whether to dismiss a suit as frivolous. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). Because Morris's complaint is pro se, it must be liberally construed and not held to as rigorous a standard as formal pleadings prepared by attorneys. See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

The court dismissed the suit under section 13.001(b)(1) because the action's realistic chance of ultimate success is slight and section 13.001(b)(2) because the action had no basis in law or fact. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1), (2). Our Supreme Court has refused to "imply approval of a dismissal of an action based solely upon section 13.001(b)(1)." See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). A complaint, however, is frivolous under federal law and under section 13.001(b)(2) if it has no arguable basis in law or fact. See Spellmon v. Sweeny, 819 S.W.2d 206, 211 (Tex. App. Waco 1991, no writ). Thus, judges can dismiss claims based on "indisputably meritless legal" theories as well as those whose "factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989).

Censorship of a prisoner's mail cannot proceed according to the whims of prison administrators. Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978). Yet, censorship of prison mail is justified if the regulation or practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression. Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224 (1974), overruled on other grounds, Thornburgh v. Abbot, -- U.S.--, 109 S. Ct. 1874, 1881, --L. Ed. 2d -- (1989). Prison officials must show that a regulation authorizing censorship furthers a substantial interest in order, security, or rehabilitation and that the limitations on first-amendment freedoms are no greater than necessary. Id.

A prisoner's first-amendment rights should be evaluated in light of the prison environment. Guajardo, 580 F.2d at 762. The State of Texas is not constitutionally required to permit a prisoner to have conjugal visits. Id. It also has a significant rehabilitative interest in preventing homosexual acts, whether between consenting or non-consenting partners. Id. Sexually explicit publications circulated in prisons may stimulate inmates and tempt them to engage in unlawful homosexual activities. Id.

Accordingly, the following guidelines have been established concerning the censorship of publications to inmates: (1) "[b]efore delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental to prisoner rehabilitation because it would encourage deviate, criminal sexual behavior"; and (2) prisoners can appeal the decision through proper administrative channels. Id.

We find that the dismissal of Morris's complaint as frivolous before service of process was premature. See Montana v. Commissioners Court, 659 F.2d 19, 22 (5th Cir. 1981). Once Morris alleged that the mail-room clerk wrongfully censored and destroyed his magazines, the clerk had the burden of showing that (1) the regulation authorizing censorship of those magazines furthered a substantial rehabilitation interest and that the limitations on first-amendment freedoms were no greater than necessary; // and (2) the particular magazines were examined and a specific, factual determination was made that they were detrimental to prisoner rehabilitation because they would encourage deviate, criminal sexual behavior See Procunier, 94 S. Ct. at 1811; Montana, 659 F.2d at 22.

We do not express any opinion about the merits of Morris's complaint. However, we reverse the dismissal order and remand the cause for further proceedings consistent with this opinion.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed May 13, 1992

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