Christopher Cowan v. Wesley Warner, et al--Appeal from 12th District Court of Madison County

NO. 10-91-046-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CHRISTOPHER COWAN,

Appellant

v.

WESLEY WARNER, ET AL,

Appellee

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From 12th Judicial District Court

Madison County, Texas

Trial Court # 6460

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O P I N I O N

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Christopher Cowan, a prison inmate, filed a pro se petition in forma pauperis against Wesley Warner, Kent Ramsey and James Collins, all prison employees, alleging that his right to due process was violated because he did not receive specific notice of the charges against him at a prison disciplinary hearing. The employees filed an answer and asked the court to dismiss the cause. Acting under section 13.001 of the Civil Practice and Remedies Code, the court dismissed the action as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991). Cowan contends that the dismissal was "wrong." The order of a dismissal will be affirmed.

Section 13.001 and its federal counterpart authorize the dismissal of pro se suits by paupers if the court is satisfied that the action is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991); 28 U.S.C.A. 1915(d) (West 1966). The rationale behind these statutes is to prevent a pauper-litigant from filing "frivolous, malicious, or repetitive lawsuits." Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1834, 104 L. Ed. 2d 338 (1989). Judges can dismiss claims based on "indisputably meritless legal" theories as well as those whose "factual contentions are clearly baseless." Id. 109 S. Ct. at 1833. Furthermore, 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).

Here, the court could have considered that the defendants, all state employees, were entitled to quasi-judicial immunity from damages. See Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App. Houston [14th Dist.] 1990, no writ). Furthermore, because "prison officials have broad administrative and discretionary authority over the institutions they manage and lawfully incarcerated persons retain only a narrow range of protected liberty interests," the court could have determined that the procedure followed at the prison disciplinary hearing was proper. See Johnson v. Lynaugh, 800 S.W.2d 936, 938-39 (Tex. App. Houston [14th Dist.] 1990, writ granted).

Accordingly, we hold that the court did not abuse its discretion when it dismissed the claim as frivolous because it could have concluded that the suit had no arguable basis either in fact or law. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2) (Vernon Supp. 1991). Point one is overruled and the order of a dismissal is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

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