DAN
THOMAS, Appellant v. LINDA KNIGHT BILBY, ET AL., Appellees
No. 06-00-00113-CV
COURT OF APPEALS OF TEXAS,
SIXTH DISTRICT, TEXARKANA
40 S.W.3d 166
January 29, 2001,
Submitted
February 21, 2001, Decided
Dan Thomas appeals the dismissal
of his suit against Linda Knight Bilby, Mettie Faye Degetaire, and Jettie A.
Jernigan (collectively, Appellees). Thomas, an inmate in the Texas Department
of Criminal Justice, Institutional Division (TDCJ), filed his suit pro se and
in forma pauperis, alleging that Appellees, who are TDCJ employees, violated
his rights under 42 U.S.C.A. § 1983 (West Supp. 2000) and various provisions of
Texas law by interfering with his mail. Appellees filed an answer and
later filed a motion to dismiss pursuant to Chapter 14 of the Texas Civil
Practice and Remedies Code. The trial court scheduled a hearing for March 29,
2000, though a reporter's record from that hearing is not before this Court. In
an order dated March 29, 2000, the trial court granted Appellees' motion to
dismiss.
Thomas raises three issues on
appeal: (1) whether the trial court abused its discretion in not providing a
way for him to participate in the March 29, 2000, hearing; (2) whether TEX.
CIV. PRAC. & REM. CODE ANN. §
14.004(a), (b) (Vernon Supp. 2001) violates the United States and Texas
Constitutions; and (3) whether the trial court abused its discretion by changing
cause numbers in his suit without notice to him.
A
trial court may dismiss a suit filed by an indigent inmate either before or
after service of process if the court finds that the claim is frivolous or
malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (Vernon Supp.
2001). An inmate who files an affidavit or unsworn declaration of
inability to pay costs must file a separate affidavit or unsworn declaration
identifying every pro se suit (except suits filed under the Texas Family Code)
he has previously filed and a description of each suit. TEX. CIV. PRAC. &
REM. CODE ANN. § 14.004(a). If the
affidavit or unsworn declaration states that a previous suit was dismissed as
frivolous or malicious, then the affidavit or unsworn declaration must also
provide the date of the final order affirming the dismissal. TEX. CIV. PRAC.
& REM. CODE ANN. § 14.004(b).
Section 14.004's purpose is to assist the trial court in determining
whether a suit is malicious or frivolous under Section 14.003(a). Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.
App.-Waco 1996, no writ). Therefore, a trial court may dismiss a suit under
Section 14.003(a) without notice when an inmate fails to file the affidavit
required under Section 14.004. Id. The record reflects that Thomas did not file
the affidavit required under Section 14.004.
In
his first issue on appeal, Thomas contends the trial court abused its
discretion in not allowing him to attend the hearing on Appellees' motion to
dismiss. Initially, we
note that under Section 14.003(c) the trial court is not required to hold a
hearing before dismissing a suit under Section 14.003(a). TEX. CIV. PRAC. &
REM. CODE ANN. § 14.003(c) (Vernon
Supp. 2001).
Thomas also does not point us to
any place in the record where he requested a bench warrant. See In re
M.M., 980 S.W.2d 699, 701-02 (Tex. App.-San Antonio [*169]1998, no pet.); Pedraza
v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1997, no
pet.) (where there is no record that
the trial court ruled on a motion for bench warrant, there was [*170] no abuse
of discretion in refusing to grant writ of habeas corpus on that issue); Conely
v. Peck, 929 S.W.2d 630, 633 (Tex. App. -- Austin 1996, no writ) (where the
record contains no motion for bench warrant and no record of court's ruling on
such motion, court presumes the record supports the judgment). He did attach to
his brief a copy of a motion for a bench warrant, which he asserts he sent to
the trial court; however, attachments to the brief are not a part of the
appellate record. Randle v. Wilson, 26
S.W.3d 513, 515 n.1 (Tex. App. -- Amarillo 2000, no pet.).
Even assuming the trial court
received Thomas' motion for a bench warrant, there was no abuse of discretion
in not allowing him to appear at the hearing. Though a party may not be denied
access to the courts merely because he is an inmate, there is no absolute right
for an inmate to appear in court in a civil case. Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex.
App.-Texarkana 1994, writ denied); see also Brewer v. Taylor, 737 S.W.2d 421,
423 (Tex. App.-Dallas 1987, no writ). In considering an inmate's right to
appear, courts generally follow a balancing approach, weighing the preservation
of the correctional system's integrity against the prisoner's right of access,
with a goal of achieving a balance that is fundamentally fair. Armstrong, 881 S.W.2d at 56; Brewer, 737
S.W.2d at 423. Review is under an abuse of discretion standard. Armstrong, 881
S.W.2d at 56; Brewer, 737 S.W.2d at 423.
Courts consider a number of
factors in determining this balance, including:
(1) the cost and inconvenience of
transporting the inmate to court;
(2) the security risk and danger to the
court and the public by allowing the inmate to attend court;
(3) whether the inmate's claims are
substantial;
(4) whether a determination of the matter
can reasonably be delayed until the inmate is released;
(5) whether the inmate can and will offer
admissible, noncumulative testimony that cannot be offered effectively by
deposition, telephone, or otherwise;
(6) whether the inmate's presence
is important in judging his demeanor and credibility compared with that of
other witnesses;
(7) whether the trial is to the court or to
a jury; and
(8)
the inmate's probability of success on the merits.
Armstrong, 881 S.W.2d at 56; Brewer, 737
S.W.2d at 423.
Only when an inmate has been
effectively barred from presenting his case has an appeals court been willing
to find error in the denial of an inmate's request to personally appear. See
Pruske v. Dempsey, 821 S.W.2d 687, 688-89 (Tex. App.-San Antonio 1991, no
writ); Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.-Tyler 1989, no writ).
In the present case, Appellees' motion to dismiss raised the issue that Thomas
failed to file the affidavit required under Section 14.004. That issue was
wholly determinable from the record. Therefore, Thomas did not need to appear
at the hearing to effectively present his case.
Nevertheless, Thomas contends the trial court should have allowed him to
proceed in some other manner, such as by affidavit, deposition, telephone, or
otherwise. He cites Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App. -- Fort
Worth 1989, writ denied), in which the court of appeals found no abuse of
discretion in the trial court's refusal to allow the inmate to appear
personally because, in that case, the trial court allowed the inmate to proceed
by affidavit. Id.
He
also cites Byrd v. Attorney Gen. of Texas, 877 S.W.2d 566, 569 (Tex. App. --
Beaumont 1994, no writ), in which the court of appeals stated, "Should the
[trial] court find that the pro se plaintiff inmate in a civil action is not
entitled to leave prison to appear personally in court, then the prisoner should
be allowed to proceed by affidavit, deposition, telephone, or other effective
means." In that case, the court reversed the dismissal of the inmate's
suit because the trial court effectively denied the inmate any opportunity to
present evidence "in a proceeding where his testimony was material to the
central fact at issue." Id.
In the present case, there was no abuse of discretion because Thomas could
have filed the affidavit required under Section 14.004 and avoided dismissal.
His presence at the hearing, either in person or otherwise, was unnecessary
because the only issue was whether he had complied with the statute. We
overrule his first issue on appeal.
In
his second issue on appeal, Thomas contends that Section 14.004(a), (b) is unconstitutional in that (1) it
violates his right to equal protection under the law as guaranteed by the
United States and Texas Constitutions, see U.S. CONST. amend XIV; TEX. CONST.
art. I, §§ 3, 3a; and (2) it violates
the special laws provision of the Texas Constitution. See TEX. CONST. art. III,
§ 56. Thomas preserved these issues in his timely- filed motion for new trial.
The
issue of whether Section 14.004(a), (b) violates an inmate's right to equal
protection does not appear to have been addressed by a Texas state court.
Both the state and federal equal protection guarantees require a similar
multi-tiered analysis. Where the classification does not impinge on a
fundamental right, or distinguish between persons on a suspect basis such as
race or national origin, it is valid as long as it is rationally related to a
legitimate state purpose.
Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 451
(Tex. 2000). Neither inmates nor indigents constitute a suspect class. Carson v. Johnson, 112 F.3d 818, 821-22 (5th
Cir. 1997).
In Hicks
v. Brysch, 989 F. Supp. 797, 822 (W.D. Tex. 1997), the federal court was
confronted with a similar argument regarding Chapter 14 of the Texas Civil
Practice and Remedies Code. The court found Chapter 14 in general, and Section
14.004 in particular, to be rationally related to a legitimate state purpose.
Id. In so holding, the court stated,
Deterring
the filing of frivolous and malicious lawsuits, and thereby preserving scarce
judicial resources is a legitimate state interest. The provisions of Section
14.004 . . . are clearly intended to furnish state courts with the information
they need to ascertain whether the claims a prisoner seeks to assert in the
state courts have already been litigated on the merits or determined to be
frivolous or malicious.
Id. at 823.
We agree with the reasoning of
the federal court. Indeed, Thomas is the veritable poster child for the
rational basis of Section 14.004. There are sixteen published opinions in which
an inmate named Dan Thomas appears as the appellant. By his own admission in a
previous case, Thomas has filed over 175 lawsuits. Thomas v. Bush, 23
S.W.3d 215, 218 (Tex. App. -- Beaumont 2000, no pet.). In his brief before this
Court, Thomas states that his litigation history dates from 1977. With so
[*171] much litigation, the trial court was entitled to determine from an
affidavit filed under Section 14.004 whether Thomas' suit was related to a
previous suit that may have been dismissed as frivolous.
Thomas cites Ayers v. Norris, 43 F. Supp. 2d 1039, 1051 (E.D. Ark.
1999), in which an Arkansas federal district court found 28 U.S.C.A. § 1915(g)
unconstitutional as applied to the inmate. Except in certain circumstances,
Section 1915(g) prevents an inmate from bringing an action in federal court if
the inmate, while incarcerated or detained in any facility, has brought three
or more actions in federal court that were dismissed as frivolous, malicious,
or as failing to state a claim on which relief may be granted. 28 U.S.C.A. § 1915(g) (West Supp. 2000).
In
his cause of action, the inmate sought access to certain documents used in
determining his eligibility for parole.
Ayers, 43 F. Supp. 2d at 1042. The court held that the inmate's suit
implicated a liberty interest that is
entitled to procedural due process protection. Id. at 1048. As such, the inmate's suit sought to vindicate a
fundamental right, thus triggering strict scrutiny analysis. Id. The court
found that the law was not narrowly tailored to serve a compelling government
interest. Id. at 1051.
Ayers is distinguishable from the present case. First, Thomas has not
shown how his suit implicates a fundamental right. Second, unlike Section
1915(g), Section 14.004 does not act as a complete bar to an inmate's in forma
pauperis cause of action. Section 14.004 requires only that the inmate submit a
filing describing the previous pro se suits the inmate has brought. We overrule
Thomas' equal protection contention.
Thomas also contends that Section 14.004(a), (b) is a "special
law" in violation of TEX. CONST. art. III, § 56, which prohibits the
Legislature from enacting a special law "regulating the practice or
jurisdiction of . . . any judicial proceeding or inquiry before courts." A
special law is limited to a particular class of persons, distinguished by some
characteristic other than geography. Sheldon,
22 S.W.3d at 450. The purpose of Section 56 is to prevent the granting of special
privileges, to promote uniformity of law throughout the State, and to prevent
the enactment of laws to advance personal interests rather than the public
interest. Id. The test of whether a law is general or special is whether there
is a reasonable basis for the classification made by the law and whether the
law operates equally on all within the class. Maple Run at Austin Mun. Util.
Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996) (quoting Rodriguez v.
Gonzales, 148 Tex. 537, 227 S.W.2d 791, 793 (1950)).
In Bush,
23 S.W.3d at 219, the same argument was made before the Beaumont Court of
Appeals. The Beaumont court found there is a reasonable basis for the
classification made by Section 14.004 because the law is intended to control
"the flood of frivolous lawsuits being filed in the courts of this State
by prison inmates, consuming valuable judicial resources with little offsetting
benefit." Id. (quoting Hickson, 926 S.W.2d at 399). We agree. Therefore,
inasmuch as Thomas has not demonstrated how the law operates unequally on all
the members of the class, we overrule his second issue.
In his third issue, Thomas contends the trial court is proceeding under two separate cause numbers. The basis of his contention is a document attached to his brief that is styled "Original Petition With A Jury Demand." The document appears to be an original petition, but it is not contained in the clerk's record. The cause [*172] number handwritten at the top of that document is 17594. Every other document in the clerk's record is listed under cause number 17584. Thomas contends that the order dismissing the case is not valid to dispose of cause number 17594 because it was issued under cause number 17584.
We
overrule Thomas' third issue on appeal. As stated previously, attachments to
the brief are not part of the appellate record. Randle, 26 S.W.3d at 515 n.1.
The
judgment is affirmed.
Donald R. Ross
Justice
Date Submitted: January 29, 2001
Date Decided: February 21, 2001