HOMER LEE BROWN v. TEXAS BOARD OF CRIMINAL JUSTICE, ET AL.--Appeal from 136th District Court of Jefferson County

NUMBER 13-01-713-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI-EDINBURG

  HOMER LEE BROWN,   Appellant,

v.

  TEXAS BOARD OF CRIMINAL JUSTICE, ET AL. Appellee.

On appeal from the 136th District Court

of Jefferson County, Texas.

OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

  Opinion by Chief Justice Rogelio Valdez

Appellant, Homer Lee Brown, a prisoner proceeding pro se and in forma pauperis, filed suit against the Texas Board of Criminal Justice, the Texas Board of Pardons and Paroles, and the Texas Department of Criminal Justice. Appellant alleged that his rights were violated during his parole revocation hearing, and that suit was proper under the Texas Tort Claims Act because of the appellees= use or misuse of tangible personal property, specifically, the training book used by the parole board hearing officers, his handcuffs, the cassette recorder used to record his parole hearing, the keyboard used to type his revocation hearing report, and the law books and keyboard used to create administrative directives. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2) (Vernon 1997). The injury that appellant alleged resulted from this misuse is his incarceration. Appellant thus sought the recovery of monetary damages.

Appellees moved to dismiss appellant=s lawsuit on both procedural and substantive grounds. The trial court, following a telephonic hearing, dismissed appellant=s suit with prejudice.

Appellant raises three issues on appeal: (1) whether the trial court can order a summary judgment hearing, and then, without notice to the plaintiff, consider the defendants= motion to dismiss; (2) whether the use or misuse of tangible personal property applies in this cause and whether the defendant state agencies have immunity when clearly violating the law; and (3) whether and how these claims can be brought under 42 U.S.C. '1983 and the Texas Tort Claims Act.

We affirm the decision of the trial court.

Applicable Law

Chapter 14 of the Texas Civil Practice and Remedies Code governs appellant=s suit as an inmate proceeding in forma pauperis. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.001 - .014 (Vernon Supp. 2002); Hickman v. Adams, 35 S.W.2d 120, 123 (Tex. App.BHouston [14th Dist.] 2000, no pet.). We review the trial court=s dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.BWaco 1996, no writ). A trial court has broad discretion to dismiss an inmate=s suit if the court finds the claim is frivolous or malicious. Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.BHouston [14th Dist.] 1996, writ denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.BHouston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. Murray v. Tex. Dept. of Crim. Justice, 2002 Tex. App. LEXIS 492, *5 (Tyler Jan. 23, 2002, no pet.) (per curiam) (citing Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. AppBWaco 1991, writ denied)).

Texas Civil Practice and Remedies Code section 14.003(b) provides four factors a court may use in determining whether a lawsuit is frivolous: (1) whether the claim=s realistic chance of ultimate success is slight; (2) whether the claim has no arguable basis in law or in fact; (3) whether it is clear that the party cannot prove facts in support of the claim; and (4) whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b) (Vernon Supp. 2002).

Notice

Appellant argues that the trial court erred in dismissing his suit without notice. The Texas Civil Practice and Remedies Code provides that, in determining whether to dismiss a claim as frivolous under section 14.003, the court may hold a hearing. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(c) (Vernon Supp. 2002) (emphasis added). The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court. Id.

The plain language of the statute indicates that the court=s decision to hold a hearing is discretionary. See Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.BFort Worth 1997, pet. denied). It was, therefore, not mandatory that the court give notice of a hearing or even conduct a hearing to decide whether to dismiss appellant=s claim.

Appellant=s first issue is overruled.

Arguable Basis in Law

Appellant=s claims in the underlying proceeding rely on the assumption that his parole revocation process was illegitimate. However, to recover money damages for Aharms caused by actions whose unlawfulness would render a conviction or sentence invalid,@ the United States Supreme Court requires a state prisoner to show first that his conviction or sentence was overturned on appeal, expunged by executive order or state tribunal, or called in question by a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 477-78, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994)(applicable to proceedings under 42 U.S.C.A. ' 1983). The Heck analysis applies to parole proceedings as well. Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995).

In the matter before this Court, appellant has not shown that his parole revocation has been overturned, expunged, set aside, or questioned by the issuance of a writ of habeas corpus. Therefore, his action has no arguable basis in law. Heck, 512 U.S. at 477-78; Littles, 68 F.3d at 123.

Moreover, taking all the facts asserted by appellant as true, appellant has no cause of action under the Texas Tort Claims Act. A governmental unit is immune from tort liability unless the legislature has waived immunity. See Harris Cty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Exceptions to sovereign immunity are generally dependent entirely upon statute. See Dallas Cty. MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998).

Section 101.021(2) of the Texas Civil Practice & Remedies Code provides a limited waiver of sovereign immunity: a governmental unit in the state is liable for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. Code Ann. '101.021(2) (Vernon 1997). To state an actionable complaint under the Texas Tort Claims Act, the personal injury or death must be proximately caused by the condition or use of tangible property. Bossley, 968 S.W.2d at 341-42. AProperty does not cause injury if it does no more than furnish the condition that makes the injury possible.@ Id.

The gravamen of appellant=s complaint is that the appellees used or misused information, rather than tangible personal property, resulting in appellant=s incarceration. Appellees do not waive sovereign immunity through the erroneous use of information. See, e.g., Prairie View A&M Univ. of Tex. v. Mitchell, 27 S.W.3d 323, 327 (Tex. App.BHouston [1st Dist.] 2000, pet. denied). Moreover, use of the property at issue did not proximately cause appellant=s incarceration. Bossley, 968 S.W.2d at 341-42.

We find appellant had no arguable bases in law for his suit, and the trial court did not abuse its discretion in dismissing his suit with prejudice.[1] See Denson v. Tex. Dept. of Crim. Justice, 63 S.W.3d 454, 459-62 (Tex. App.BTyler 1999, pet. denied). Appellant=s second and third issues are overruled.

Procedural Requisites

Upon further reviewing the record, we also conclude that the trial court=s ruling was supported by appellant=s failure to comply with the procedural requisites applicable to inmate litigation.

In determining whether a suit is frivolous or malicious, the trial court may consider whether the claim is substantially similar to an inmate=s previous claim because the claim arises from the same operative facts as the previous claim. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b)(4) (Vernon Supp. 2002); Hickman, 35 S.W.3d at 123. To aid the trial court in making this determination, an inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or declaration setting out information regarding certain previous lawsuits. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a) (Vernon Supp. 2002). The inmate must state in his affidavit the Aoperative facts@ for which relief was sought, the identity of each party named in the suit, and the result of the suit. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a)(2)(A)(C)(D) (Vernon Supp. 2002). When the inmate fails to comply with the affidavit requirements of the code, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous. Bell v. Tex. Dep=t of Criminal JusticeBInst. Div., 962 S.W.2d 156, 158 (Tex. App.BHouston [14th Dist.] 1998, pet. denied). The trial court is under no duty to suggest or recommend that appellant amend his pleading or his affidavit. Hickman, 35 S.W.3d at 125.

Appellants= original petition included an Aaffidavit relating to previous filings@ which listed one lawsuit: Brown v. Tex. Bd. of Crim. Justice, Cause No. 98-CV-489 in the United States District Court for the Southern Division. Appellant=s affidavit did not reference Brown v. Johnson, Cause No. 89-CV-2469 in the United States District Court for the Southern District, another lawsuit initiated by appellant. Appellant thus failed to file a complete declaration relating to previous filings. According to our review of the record, appellant further failed to comply with section 14.006 requiring that appellant file a copy of his inmate trust account with his petition, and also failed to comply with section 14.005 requiring appellant to file documentation relating to his grievance procedure. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.005, 14.006 (Vernon Supp. 2002).

Because appellant did not comply with the requirements of chapter 14, the trial court did not abuse its discretion in dismissing appellant=s lawsuit. See Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.BBeaumont 2001, no pet.).

The judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 20th day of June, 2002.

[1]Appellant argues the trial court erred in dismissing his case as frivolous, but does not argue that the trial court erred by dismissing his case with prejudice, therefore, we do not address that issue herein. See Tex. R. App. P. 47.1; Diles v. Henderson, No. 13-01-346-CV, 2002 Tex. App. LEXIS 3767, *1, n.1 (Corpus Christi May 23, 2002, no pet. h.).