Charles Dennis Smith v. Internal Affairs Division, Texas Department of Criminal Justice--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-93-270-CV

CHARLES DENNIS SMITH,

Appellant

v.

INTERNAL AFFAIRS DIVISION, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 27,933

O P I N I O N

This is an appeal from an in forma pauperis action filed pursuant to Rule 145 of the Texas Rules of Civil Procedure. The trial court dismissed the cause as frivolous and malicious, pursuant to 13.001 of the Tex. Civ. Prac. & Rem. Code, for failure to state a cause of action in that the claim had no arguable basis in law or fact. The trial court should be allowed broad discretion when determining whether a suit filed pursuant to Rule 145 should be dismissed as frivolous or malicious under section 13.001. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). We conclude that the trial court did not abuse its discretion in dismissing the cause because the claim has no arguable basis in law or fact. Accordingly, we affirm.

Smith claims that the Texas Department of Criminal Justice, Internal Affairs Division (TDCJ-IAD) has violated his constitutional rights by placing a hold on his trust fund account without legal authority and further that his parole is being delayed. Smith's claim that his parole is being delayed is moot, however, since he now has been paroled from prison.

The Texas Department of Criminal Justice, Institutional Division, has, pursuant to statute, developed a system for the resolution of inmate grievances. See Tex. Gov't Code Ann. 501.008 (Vernon Supp. 1994). The TDCJ-ID board policy on inmate grievances specifically applies to Smith's complaint concerning his trust fund account. See Texas Department of Criminal Justice Administrative Directive 14.63 I(A)a. Even though Smith admits that he used the grievance procedure, he has failed to allege or show documentary proof that he fully pursued his administrative remedies prior to filing this suit. Because he failed to show that he has exhausted his administrative remedies, the court in exercising its broad discretion could have reasonably concluded that Smith's claim had no arguable basis in law. See id.

We do not find the court abused its discretion in dismissing the suit. See Tex. Civ. Prac. & Rem. Code Ann. 13.001; Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 28, 1994

Do not publish