Emmit Brager v. Sgt. Worley--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-311-CV

EMMIT BRAGER,

Appellant

v.

SGT. WORLEY,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,681

O P I N I O N

Appellant Brager appeals from an order of the trial court dismissing his pro se informa pauperis action as frivolous.

Appellant sued Sgt. Worley, property sergeant at the Hughes Unit of the Texas Department of Criminal Justice, Institutional Division, at Gatesville, alleging that Appellee held items of his personal property and refuses to return same to him. Specifically, Appellant alleged a prison guard took five bags of Maxwell House Coffee, two tubes of toothpaste, 20 packages of soup, four cans of chili, two cans of tuna, one can of roast beef, and 2 cans of lasagna from him and turned same into the property officer, Sgt. Worley, who refuses to return Appellant's property. Appellant sought return of the personal property plus $10,000 for violating his constitutional rights of due process.

Appellant pursued his claim through the grievance process at the Hughes Unit prior to filing his suit in court. Exhibits from the grievance process reflect that Appellant's complaints were investigated and that some items he contended were taken from him were returned, but other items which could not be validated as purchased from the commissary by him were not returned.

The trial court dismissed Appellant's case as frivolous because of a failure to state a cause of action.

Appellant appeals contending that he did state a cause of action and that the trial court erred in dismissing his case.

Appellant's suit was dismissed pursuant to Texas Civil Practice & Remedies Code Ann., 13.001, Dismissal of Action, which 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;

(2) the action is frivolous or malicious.

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

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

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

(3) it is clear that the party cannot prove a set 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.

The trial court has broad discretion to determine whether a suit filed pursuant to Rule 145, Texas Rules of Criminal Procedure, should be dismissed as frivolous under Section 13.001 of the Texas Civil Practices & Remedies Code. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989, writ denied), 796 S.W.2d 705 (Tex. 1990).

Johnson, supra, states that Section 13.001 mirrors 28 U.S.C. 1915(d), the federal statute empowering federal courts to dismiss frivolous or malicious informa pauperis actions; and explains that Congress recognized that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.

Appellant has not shown that he had title or right of possession of the personal property he asserts in his suit and thus cannot maintain an action for conversion. Catania v. Garage de la Paix, Inc., 542 S.W.2d 239 (Tex. App. Tyler 1976, n.r.e.).

The trial court did not err in dismissing Appellant's action as frivolous. The trial court's order is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 28, 1996

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