Manuel Alcoser, Jr. v. Gary L. Johnson--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-97-256-CV

MANUEL ALCOSER, JR.,

Appellant

v.

GARY L. JOHNSON,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 31006

O P I N I O N

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

Appellant, a prison inmate, filed suit to mandamus Appellee, Custodian of Public Records for the Texas Department of Criminal Justice, to make available to Appellant his records "pertaining to classification file, for inspection and possible duplication." Appellant alleged that Appellee denied him the requested information and in so doing abused his discretion.

The trial court dismissed Appellant's case as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

Appellants appeals contending his action is not frivolous because government officials have a duty required by law to furnish him the requested records.

Appellant filed a pauper's affidavit pursuant to Rule 145, Texas Rules of Civil Procedure. Chapter 14, 14.003, Texas Civil Practice and Remedies Code, applies to suits brought by an inmate who has filed an affidavit of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit, before or after process is served, if the court finds (1) the allegation of poverty is false, (2) the claim is frivolous or malicious, or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false. In determining whether a claim is frivolous or malicious, the court may consider whether (1) the claim's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate.

Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the case number, the court in which it was brought, the names of the parties and the results of the suit. Id. 14.004(a). This section further requires the inmate to file a certified copy of his trust account statement from the department. Id. 14.004(c).

Our review of a dismissal under Chapter 14 is controlled by the abuse-of-discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex 1939).

Appellant's petition was not accompanied by the affidavit or unsworn declaration required by Section 14.004, Texas Civil Practice and Remedies Code.

Chapter 14 was designed to control the flood of frivolous lawsuits being filed by prison inmates consuming valuable judicial resources with little offsetting benefit. Hickson v. Moya, 926 S.W.2d 397 (Tex. App. Waco 1996, no writ).

The supplemental filing required by Section 14.004 is designed to assist the court in making determinations the Legislature called upon it to make; thus, it is an essential part of the process by which the courts review inmate cases.

Because the court can dismiss when an inmate files a false affidavit or declaration, that same policy allows a court to dismiss a suit that is filed without the affidavit or declaration. Hickson, supra.

The trial court did not abuse its discretion in dismissing Appellant's suit. The order of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 29, 1997

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