Gregory Bolling A/K/A Jimmy Ray Hill v. Secretary of State of the State of Texas--Appeal from 299th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00518-CV
Gregory Bolling a/k/a Jimmy Ray Hill, Appellant
v.
Secretary of State of the State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 92-17017, HONORABLE HUME COFER, JUDGE PRESIDING

PER CURIAM

 

Appellant Gregory Bolling a/k/a Jimmy Ray Hill appeals from an order of the district court of Travis County dismissing his suit against appellee the Secretary of State of the State of Texas on the basis that the suit was frivolous and malicious and brought solely to harass federal officials, federal judges, and Bolling's attorneys. See Tex. Civ. Prac. & Rem. Code 13.001(a)(2) (West Supp. 1995); Tex. R. Civ. P. 13. Bolling raises three points of error complaining that the trial court erred in dismissing the suit. We will affirm the trial court judgment.

In 1991, Bolling entered a plea of guilty to several criminal counts in federal district court. While awaiting sentencing, Bolling filed suit in Travis County district court against the federal judge, federal officers involved in the investigation and prosecution and his attorneys seeking $72,000,000 in damages. The district court dismissed this suit on its finding that it was frivolous and malicious and was "`a patent use of the court system to stymie the prosecution by the United States government against'" Bolling.

Bolling then filed UCC financing statements reciting that the defendants and others were indebted to him in the amount of $72,000,000 with the Secretary of State. See generally Uniform Commercial Code, Tex. Bus. & Com. Code Ann. 9.302(a), .401(a)(3), .402 (West 1991). The United States filed suit in federal district court to enjoin Bolling from filing liens against the federal officials and to expunge the liens already filed. In October 1992, the federal court rendered a permanent injunction enjoining Bolling from any attempts to place liens on the officials' property, enjoining the Secretary from accepting or recording a financing statement relating to the federal officials and finding that the UCC financing statements were invalid. Bolling then filed the suit that underlies this appeal in which he requested the district court to order the Secretary of State to file liens and not to expunge liens already filed. The Secretary of State responded with a motion to dismiss on the basis that, because the federal court had already decided the issues raised, the suit was frivolous and malicious and brought solely for harassment. The court concluded that both section 13.001 and rule 13 allowed dismissal and dismissed the suit.

Bolling raises three points of error on appeal which, in sum, assert that the trial court erred in dismissing the lawsuit. (1) A trial court may dismiss an action in which a plaintiff has filed an affidavit of inability to pay if the court finds that the action is frivolous or malicious. Id.; Johnson v. Peterson, 799 S.W.2d 345, 346 (Tex. App.--Houston [14th Dist. 1990, no writ). In determining whether the action is frivolous or malicious, the court determines whether the claim has an arguable basis in law or fact. Tex. Civ. Prac. & Rem. Code 13.001(b)(2) (West Supp. 1995); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex. App.--Houston [14th Dist.] 1990, writ denied). We review the trial court's decision for abuse of discretion. Dillon v. Ousley, 890 S.W.2d 500, 501 (Tex. App.--Corpus Christi 1994, no writ). In determining whether the trial court abused its discretion, we determine whether the trial court acted without reference to any guiding principles or whether the action was arbitrary or unreasonable. Metropolitan Life Ins. Co. v. Syntek Fin. Co., 881 S.W.2d 319, 321 (Tex. 1994); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). The fact that a trial court may decide a matter differently than an appellate court in similar circumstances does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 242.

The trial court concluded that Bolling's claims had no arguable basis in law or fact. Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2) (West Supp. 1995). We have reviewed the record before this Court, which includes the federal district court order, and conclude that the trial court did not abuse its discretion in dismissing the suit pursuant to section 13.001. Reading Bolling's petition broadly, it presents no basis on which a court could grant relief against the Secretary of State. See Perales v. Kinney, 891 S.W.2d 731, 732 (Tex. App.--Houston [1st Dist.] 1994, no writ)(courts must construe pro se inmates petition liberally); Spellmon v. Sweeney, 819 S.W.2d 206, 209 (Tex. App.--Waco 1991, no writ) (courts must construe pro se pleadings broadly when determining whether the petition is frivolous). Because section 13.001 provides a basis for the trial court's order, we do not address dismissal of the suit pursuant to rule 13. We overrule the points of error and affirm the trial court judgment.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: April 12, 1995

Do Not Publish

1. 1 The three points or issues are whether the court erred in (1) failing to take as true the allegations within Bolling's complaint, (2) failing to take as true his affidavits, and (3) not proceeding to trial on his complaint. As argument to support his points, Bolling cites only Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), in which the court stated that the federal district court was required to take the allegations of the petition as true in considering the motion to dismiss and to consider subsequently filed materials as amendments to the complaint. We read Bolling's three points broadly to complain of the dismissal of the suit. See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990).