Wilford Turk v. The Grand Jury Commissioner of the 52nd Judicial District Court of Coryell County--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-98-314-CV

WILFORD TURK,

Appellant

v.

THE GRAND JURY COMMISSIONER

OF THE 52ND JUDICIAL DISTRICT

COURT OF CORYELL COUNTY,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 31,860

O P I N I O N

Appellant Wilford Turk appeals an order of the trial court dismissing as frivolous his pro se in forma pauperis lawsuit.

Turk is an inmate confined in the Texas Department of Criminal Justice. The Coryell County Grand Jury indicted Turk for the felony offense of assault on a corrections officer. Turk requested information from the Office of the Grand Jury Commissioner of the 52nd Judicial District of Coryell County, Texas, under the Texas Open Records Act. Turk filed a Writ of Mandamus alleging he requested, but was denied, information about the racial composition of the Coryell County Grand Jury in the term of his indictment and the racial composition of registered voters used in the selection of grand jurors. Turk asserts the information requested is necessary to challenge the composition of the Grand Jury as racially discriminatory.

Turk seeks an order that the Grand Jury Commissioner make the requested records available to him. He attached to his petition his pauper's affidavit, printout from his trust account, and a list of prior lawsuits he filed.

The trial court dismissed Appellant's suit under Chapter 14 of the Texas Civil Practice and Remedies Code, finding the action frivolous and malicious because the claim had no arguable basis in law or fact. The court further found that Turk failed to state a cause of action. Turk appeals bringing two points of error.

In his first point of error, Turk asserts he is entitled to the information requested under the Texas Open Records Act. He filed a pauper's affidavit under Rule 145, Texas Rules of Civil Procedure. Texas Civil Practice & Remedies Code Chapter 14 applies to suits brought by an inmate who files an affidavit of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit before or after process is served if the court finds: ... (2) the claim is frivolous or malicious... . In determining whether a claim is frivolous or malicious the court may consider whether (1) the claim's realistic chance of success is slight; or (2) the claim has no basis in law or fact... .

Texas Gov t Code Ann. 552.028 (Vernon s 1998), Request for Information from Incarcerated Individual:

(a) A governmental body is not required to accept or comply with a request for information from an individual who is imprisoned or confined in a correctional facility.

(b) Subsection (a) does not prohibit a governmental body from disclosing to an individual described by the subsection information held by the governmental body pertaining to that individual.

A governmental body is not required to comply with a request for information from an inmate but is not prohibited from disclosing information pertaining to the inmate. It is discretionary with the grand jury commissioner whether to furnish the requested information.

The grand jury commissioner denied Turk's request for information. Texas Gov. Code Ann. 552.028 does not mandate the commissioner furnish Turk the information. Turk did not state a cause of action and the trial court's dismissal of his lawsuit is proper under Texas Civil Practice & Remedies Code Chapter 14, 14.003. His first point of error is overruled.

In his second point of error, Turk asserts he should not be denied access to information needed for his criminal trial primarily because he is an inmate. Texas Gov. Code Ann. 552.028 states a governmental body is not required to accept or comply with a request for information from an individual imprisoned or confined in a correctional facility. Turk s second point of error is overruled.

The judgment of the trial court is affirmed.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed February 24, 1999

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