Emmit Brager v. R.J. Mata, et al.--Appeal from 52nd District Court of Coryell County

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Brager v. Mata et al /**/




No. 10-95-262-CV









From the 52nd District Court

Coryell County, Texas

Trial Court # 29,508




Emmit Brager, an inmate of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), at the Alfred D. Hughes Unit in Gatesville, Texas, filed suit in Cause No. 27897, under the provisions of 500.002, Tex. Gov't Code, alleging that he was wrongfully convicted of destroying state property.

An institutional disciplinary proceeding was conducted under the above statute wherein Appellant Brager was charged with intentional destruction of property belonging to the state, to-wit, a light fixture. The hearing was conducted by Appellee Mata, after which the said hearing officer found Appellant Brager guilty as charged and assessed damages against him in the amount of $117.36, the value of the property in question. The offense was alleged to have been committed on April 8, 1993; the disciplinary hearing was conducted on May 19, 1993; thereafter, on July 2, 1993, Appellant Brager filed suit in the 52nd District Court of Coryell County against Appellees Mata and TDCJ-ID, asserting that he was wrongfully convicted. The trial court entered an order of dismissal of Appellant's suit on September 19, 1994.

Appellant appealed the trial court's dismissal to the Court of Appeals in Cause No. 10-94-357-CV whereupon the Court of Appeals, by written opinion, dismissed the appeal for want of jurisdiction on January 18, 1995. Appellant Brager then filed an Application for Writ of Error in the Supreme Court of Texas, in Cause No. 95-0237, which application the Supreme Court denied on May 22, 1995. Then the Court of Appeals on June 12, 1995, issued its mandate dismissing Appellant's appeal.

After the conclusion of the above litigation, Appellant Brager then instituted a new round of litigation on August 9, 1995, dealing with the same subject matter; this suit is Cause No. 29,508 in the same district court as the first and against the same two defendants. The trial court, on August 21, 1995, entered an order dismissing this second suit as frivolous and malicious; the trial court further found that "this case was not timely filed per statute."

Thereafter, Appellant Brager appealed this second case to the Court of Appeals in Cause No. 10-95-262-CV, which appeal is the second appeal and the cause now before us.

All of the foregoing litigation, including that part now before us, is and has been conducted by Appellant Brager in his capacity as pro se informa pauperis. See Tex. R. Civ. P. 145; Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1995).

Appellant asserts one point of error in his brief as follows:

"The court below erred when dismissing the instant cause of action as being `not timely filed per statute.'"

He contends in a sole point of error that his first case, No. 27897, was timely filed in the trial court because it was filed within sixty days of the prison's disciplinary hearing.

We do not agree for the reason that this issue has been decided finally in Appellant's first round of litigation wherein the matter was finally decided by the Supreme Court of Texas when said Court denied a writ of error on May 22, 1995, as hereinbefore pointed out. That is to say, Appellant's second round of litigation is barred by the doctrine of res judicata. See Tex. Jur. III, Judgments, X, Effect of Judgment; Res Judicata, 351, 456. We do not reach Appellant's first point of error for the reasons stated.

Judgment of the trial court is affirmed.


Justice (Retired)


Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)


Opinion delivered and filed January 24, 1996

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