Patrick E. Conely v. Robert Preston, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-94-243-CV

PATRICK E. CONELY,

Appellant

v.

ROBERT PRESTON, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,585

O P I N I O N

Appellant Conely appeals from the order dismissing his pro se informa pauperis action as frivolous. We affirm.

On May 20, 1994, Appellant sued Appellees under the Tort Claims Act, alleging that: (1) Appellant, an inmate of the Texas Department of Criminal Justice in Gatesville, received two pictorial magazines from Publishers Service in Los Angeles, California; (2) Appellant's next door neighbor is inmate Young; (3) as Appellant attempted to show inmate Young the cover of one of the pictorials, Appellee Preston, an officer employed by TDCJ, knocked the pictorial out of Appellant's hand; (4) Appellee Preston neither returned the magazine to Appellant nor turned it in to the property room; (5) Appellant presented this matter as a grievance to the unit; and (6) the grievance came back denied stating, "for your information trafficking and trading is a rule violation. The magazine was found lying on the run. It was torn and appeared to be trash. Half of the inmates in 4 Section claimed ownership. The magazine had no address label affixed. The envelope you attached does not identify the magazine; ownership is not determined on items confiscated from the run. Grievance Denied."

Appellant sought damages of $2,000 for mental anguish; $4.50 for replacement of the magazine; and $1,000 punitive damages.

On July 11, 1994, Appellees filed a motion to dismiss the suit as frivolous asserting Appellant's claims were not covered by the Tort Claims Act.

On July 13, 1994, Appellant filed an amended petition alleging that Appellee Preston unlawfully converted Appellant's personal property, the pictorial magazine, without due process of law, and sought damages as in his original petition.

On July 25, 1994, the trial court granted Appellees' motion and Appellant's suit was dismissed.

Appellant appeals on four points of error asserting: (1) the trial court erred in dismissing his suit without conducting a fact finding hearing; (2) the trial court erred in rendering judgment against Appellant on a claim arising out of conversion of property; (3) the trial court abused its discretion by not construing Appellant's allegations in his favor and permitting him to offer evidence; and (4) the trial court erred in rendering judgment against Appellant for claims arising from deprivation of liberty and property interest.

Appellant's suit was dismissed pursuant to Texas Civil Practice & Remedy Code, section 13.001, Dismissal of Action, which provides:

(a) A court in which an affidavit of inability to pay under Rule 145, T.R.C.P., has been filed may dismiss the action on a finding that:

(1) The allegation of poverty in the affidavit is false;

(2) The action is frivolous or malicious.

(b) In determining whether the action is frivolous or malicious, the court may consider whether:

(1) The action's realistic chance of success is slight;

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

(3) It is clear that the party cannot prove a set of facts in support of the claim.

(c) An action may be dismissed under subsection (a) as frivolous or malicious either before or after service of process.

The trial court has broad discretion to determine whether a suit, filed pursuant to Texas Rules of Civil Procedure 145, should be dismissed as frivolous under section 13.001 of the Civil Practice & Remedy Code. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989).

Section 13.001 mirrors 28 U.S.C. 1915(d), the federal statute empowering federal courts to dismiss frivolous or malicious informa pauperis actions. The U.S. Supreme Court explained the congressional intent behind section 1915(d):

Congress recognized that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious or repetitive lawsuits.

Kendrick v. Lynaugh, 804 S.W.2d 153, 155 (Tex. App. Houston [14th Dist.] 1990); Johnson v. Peterson, 799 S.W.2d 345, 346 (Tex. App. Houston [14th Dist.] 1990); Huntsberry v. Lynaugh, 807 S.W.2d 16 (Tex. App. Tyler 1991); Johnson v. Lynaugh, 796 S.W.2d 705 (Tex. 1990).

Appellant's suit was first brought under the Texas Tort Claims Act. He failed to allege any use or misuse of tangible property belonging to the State. Thus he could not prove a set of facts to sustain this claim. His amended petition alleged Appellees converted his pictorial magazine.

Appellant's first and third points contend the trial court should have conducted a fact finding hearing. An informa pauperis action can be dismissed at any time, before or after service of process.

Points two and four contend the trial court erred in rendering judgment against Appellant on a claim arising out of conversion of property. Appellant did not show that he had title or right of possession of the magazine and thus could not maintain an action for conversion. Catenia v. Garage de la Paix, Inc., 542 S.W.2d 239 (Tex. App. Tyler 1976).

The trial court did not abuse its authority in dismissing Appellant's action as frivolous. Appellant's points of error are all overruled and the trial court's judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 12, 1995

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