Terry Huntsberry v. Texas Department of Criminal Justice, Institutional Division, et al--Appeal from 52nd District Court of Coryell County

NO. 10-91-128-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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TERRY HUNTSBERRY,

Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION, ET AL,

Appellees

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From 52nd Judicial District Court

Coryell County, Texas

Trial Court # 25,932

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O P I N I O N

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Terry Huntsberry, a prison inmate, brought a pro se action in forma pauperis against the Texas Department of Criminal Justice, Institutional Division and two individuals named in his petition as "C. Jenkins" and "Mata." C. Jenkins is described in the petition as a substitute counsel to prison inmates at the Hughes Unit in Gatesville. Mata is described in the petition as a disciplinary hearing committee officer at the same unit. Before the defendants were served with process, the court dismissed the cause as being frivolous. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991). Huntsberry's point of error states: "The District Court abused its discretion when it dismissed Appellant's action without

considering the facts within the petition." We will overrule this point and affirm the judgment of dismissal.

Section 13.001 provides:

(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:

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

(2) the action is frivolous or malicious.

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

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

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

Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991).

Because of recent federal decisions, a dismissal under section 13.001(b)(3) is no longer appropriate. See Neitzke v. Williams, 490 U.S. 319, , 109 S. Ct. 1827, 1834, 104 L. Ed. 2d 338 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex. App. Houston [14th Dist.] 1990, writ granted). The federal counterpart of section 13.001 is section 1915(d) of Title 28, which authorizes federal courts to dismiss in forma pauperis suits "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." See 28 U.S.C.A. 1915(d) (West 1966). While the federal statute does not contain guidelines for determining when a suit is frivolous, a dismissal is proper if the claim has no arguable basis in law and fact. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 417, 107 L. Ed. 2d 382 (1989); Pugh, 875 F.2d at 438. The rationale behind granting trial courts the power to dismiss in forma pauperis suits is to "prevent abusive or captious litigation" where the in forma pauperis litigant "lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at , 109 S. Ct. at 1831, 104 L. Ed. 2d 338. "To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. at 1833 (emphasis added). An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit. Id. An example of factually baseless contentions occurs where the petition describes claims arising out of fantastic or delusional scenarios. Id.

Huntsberry details in his petition how, on February 19, 1991, during a routine search of his cell, officers advised him that a disciplinary report would be written because his mattress was torn. On February 25, C. Jenkins served Appellant with a "disciplinary infraction" and explained to him his rights to have and call witnesses at a hearing. Appellant asked Jenkins to obtain certain documents for the hearing, but he never heard from Jenkins again until March 4, when he was taken before officer "Mata," the disciplinary hearing captain. A hearing was held and Appellant was "found guilty" based upon the evidence that was presented. Appellant filed the petition on June 5, contending that he was denied a fair hearing and citing various statutory and constitutional provisions. //

Although Appellant's petition listed a variety of statutes under which he made his denial-of-a-fair-hearing claim, only the constitutions grant due process rights. See U.S. Const. amend. XIV; Tex. Const. art. I, 19. In evaluating the petition, the court could have considered that the hearing was held under section 499.002 of the Government Code one of the sections cited by Appellant in his petition which provides for liability of an inmate who intentionally damages property belonging to the state. See Tex. Gov't Code Ann. 499.002 (Vernon 1990). Section 499.002(d) and (e) provide that an inmate may appeal a ruling from the hearing; but unless he does so within sixty days after the date of the hearing, his appeal is barred. Id. at 499.002(d),(e). The hearing was held on March 4, and the petition was filed on June 5, more than sixty days later.

Because Appellant's petition appears to be an appeal of the hearing, the court could have determined that any complaints about the hearing were barred. See id. Additionally, because the petition made no allegation of bad faith, "Mata" and "C. Jenkins," as employees of the state, enjoyed quasi-judicial immunity from damages. See Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App. Houston [14 Dist.] 1990, no writ). Finally, just as the Fourteenth Amendment of the United States Constitution does not assure inmate satisfaction with the results of a prison disciplinary and grievance proceeding, article I, section 19, of the Texas Constitution does not afford such satisfaction. See id.

Based on the facts presented and because the court is empowered with broad discretion in making a determination to dismiss under section 13.001(b)(2), we hold that Appellant's claim had no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2) (Vernon Supp. 1991). Accordingly, we overrule Appellant's point and affirm the judgment of dismissal.

BILL VANCE

Justice

Before Chief Justice Thomas

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

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