Alvin Lee Harrison v. Director's Review Committee, Texas Department of Criminal Justice, Institutional Division--Appeal from 52nd District Court of Coryell County

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Harrison-AL v. Director's Review Committee /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-002-CV

 

ALVIN LEE HARRISON,

Appellant

v.

 

DIRECTOR'S REVIEW COMMITTEE,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Appellee

 

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,725

 

O P I N I O N

 

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

Appellant, an inmate at the Hughes Unit in Gatesville, tendered to the Unit Mail Office for mailing a letter to the Minority Opportunity News in Dallas, Texas. The Unit Mail Office refused to mail the letter and refused to return the letter to Appellant who was advised, "Letter does not meet criterion as media correspondence."

Appellant then filed a grievance with the Director's Review Committee seeking reversal of the Hughes Unit's action. The Review Committee denied Appellant's grievance and upheld the action of the Hughes Unit Mail Office.

Appellant then filed a petition in the District Court of Coryell County for a judicial review of the Review Committee's action. Appellant sought an order of the court that the Review Committee acted wrongfully and abused its discretion.

The trial court dismissed Appellant's suit as frivolous pursuant to Texas Civil Practice & Remedies Code, 13.001, finding that the trial court lacked jurisdiction.

Appellant appeals on one point of error: "The District Court abused its discretion when it failed to forward the petition to the proper jurisdiction in the matter."

Appellant states in his brief that Travis County was the county having jurisdiction over his case. He contends that, since he "inadvertently" filed same in Coryell County, the trial court abused its discretion in dismissing his case. He further contends the trial court should have forwarded his petition to Travis County.

Texas Civil Practice & Remedies Code 13.001, Dismissal of Action, provides in pertinent part:

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

. . .

(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

(3) it is clear that the party cannot prove a set of facts in support of his claim . . . .

 

The trial court has broad discretion to determine whether a suit filed pursuant to Rule 145, Texas Rules Civil Procedure, should be dismissed as frivolous under 13.001 of the Texas Civil Practice & 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 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.

The trial court did not err in dismissing Appellant's action as frivolous. Appellant's point is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 22, 1996

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