Lawrence Edward Thompson v. Texas Department of Criminal Justice, Institutional Division

CV2-622 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-622-CV LAWRENCE EDWARD THOMPSON, APPELLANT vs. TEXAS DEPARTMENT OF CRIMINAL JUSTICE--INSTITUTIONAL DIVISION, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 92-00851, HONORABLE JERRY DELLANA, JUDGE PRESIDING PER CURIAM Lawrence Edward Thompson appeals the dismissal of his pro se in forma pauperis lawsuit against appellee, Texas Department of Criminal Justice--Institutional Division (the Department). Thompson sued the Department for money he claimed was owed him as "get out" money for discharging two criminal sentences, although still incarcerated on other outstanding sentences. (1) The Department moved to dismiss the suit as frivolous. Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1994)(the Code). We will affirm the judgment of dismissal. A trial court may dismiss a suit brought in forma pauperis if it finds that the action is frivolous or malicious. Code § 13.001(a)(2). A claim may be dismissed as frivolous if the claim has no arguable basis in law or fact. Code § 13.001(b)(2). (2) An example of a legally baseless claim is an "indisputably meritless legal theory," such as naming a defendant who is immune from suit. See Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App.--Waco 1991, writ denied). An example of a factually baseless claim is one arising out of a fantastic or delusional scenario. See Thompson v. Ereckson, 814 S.W.2d 805, 807 (Tex. App.--Waco 1991, no writ). Trial courts have broad discretion in dismissing in forma pauperis suits as frivolous. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App.--Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). The special concern about in forma pauperis proceedings is the need to balance access to the judicial system regardless of ability to pay against the problems generated by litigants against whom the usual economic constraints against frivolous or harassing litigation may not be effective. Neitzke v. Williams, 490 U.S. 319, 324 (1989). This concern is particularly strong in prisoner litigation. Spellmon v. Sweeney, 819 S.W.2d 206, 209 (Tex. App.--Waco 1991, no writ); Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). A trial court may dismiss an action as frivolous or malicious at any time, even before an answer is filed. Code § 13.001(c); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.--Houston [14th Dist. 1990, no writ). The court may dismiss a suit without giving the plaintiff an opportunity to amend. Johnson v. Peterson, 799 S.W.2d 345, 346-47 (Tex. App.--Houston [14th Dist.] 1990, no writ). It may dismiss a suit without a hearing, except when a fact finding is required to support a dismissal of a suit for having no arguable basis in fact. See Thomas v. Holder, 836 S.W.2d 351, 352 (Tex. App.--Tyler 1992, no writ). Appellate courts review dismissals under section 13.001 using an abuse of discretion standard. Pedraza v. Tibbs, 826 S.W.2d 695, 698-99 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.). An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear that the decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). The party claiming abuse of discretion has the burden to bring forth a record showing such abuse. See Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968). Absent such a record, the reviewing court presumes that the evidence before the trial judge was adequate to support the decision. Simon, 739 S.W.2d at 795; Mays v. Pierce, 281 S.W.2d 79, 82 (Tex. 1955). Dismissals that do not state the statutory provision upon which the trial court relied will be deemed to be based on section 13.001 (b)(2). Timmons v. Luce, 840 S.W.2d 582, 584 (Tex. App.--Tyler 1992, no writ). Sovereign Immunity The State's answer claimed that sovereign immunity barred this suit. Accordingly, we assume that the trial court dismissed the cause under Code section 13.001(b)(2) because the only defendant is immune from suit. See Timmons, 840 S.W.2d at 584; Birdo, 814 S.W.2d at 810. We agree that sovereign immunity bars this suit, which is an action against a state agency, and thus the state, for a monetary claim. Sovereign immunity has two branches: immunity from liability, unless waived, see Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970), Green Int'l Inc. v. State, 877 S.W.2d 428, 432 (Tex. App.--Austin 1994, writ requested); and immunity from suit without consent, Missouri Pac. R.R., 453 S.W.2d at 813. The doctrine bars a suit against the state unless the state has expressly given its consent to be sued. See, e.g., Missouri Pac. R.R., 453 S.W.2d at 814 (statute that created navigation district and stated that district can "sue and be sued in all courts of this state" was sufficient consent to sue state); Texas Tort Claims Act., Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 1986) (person having claim under the act is granted permission to sue). In a suit against the state, a plaintiff generally has the burden to plead and prove that immunity to suit has been waived. Missouri Pac. R.R., 453 S.W.2d at 813-814; Walsh v. Univ. of Tex., 169 S.W.2d 993, 994 (Tex. Civ. App.--El Paso 1942, writ ref'd); Green, 877 S.W.2d at 437. Without an allegation and showing of consent to suit, the court is without jurisdiction to hear the case. Walsh, 169 S.W.2d at 994; Green, 877 S.W.2d at 437. Appellant has not shown the state has consented to suit; sovereign immunity bars his suit. Special Exceptions In his first point of error, appellant contends that he should have had the opportunity to amend his pleadings before dismissal. He contends that appellees should have filed special exceptions with the trial court, rather than a motion to dismiss, and that, if the exceptions were granted, he should have been given the opportunity to amend his pleadings before the court dismissed his cause. Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). Dismissal under the in forma pauperis provisions, however, may occur even before service of process. Code § 13.001(c); McDonald, 813 S.W.2d at 239, n.1 (suit can be dismissed without court requiring clerk to issue service of process). Logically then, the suit may be dismissed without special exceptions being made and an opportunity to amend. See Johnson, 799 S.W.2d at 346-47 (dismissal provisions take priority over rule regarding special exceptions; not error to grant special exceptions and motion to dismiss on same day without opportunity to amend); see also Kendrick, 804 S.W.2d at 156. We overrule point of error number one. Discovery Appellant's second and third points of error relate to unsuccessful attempts to discover his parole records, apparently with the purpose of attempting to prove that he had actually served out the full time of the sentences for which he is claiming "get out" money. Possession of the information he sought about his parole records does not waive the State's immunity from suit. Any error was harmless because appellant is barred from suing the state at all on the underlying cause of action. See Tex. R. App. P. 81(b)(1). We affirm the trial court's judgment dismissing this cause. Before Justices Powers, Aboussie and B. A. Smith Affirmed Filed: November 2, 1994 Do Not Publish 1. 1 Upon an inmate's discharge or release to parole, mandatory supervision, or conditional pardon, the Department shall provide the inmate with suitable civilian clothing, any money in the inmate's trust fund, and a total of $100.00. Tex. Gov't Code Ann. § 501.015 (West Supp. 1994). 2. 2 Although section 13.001 gives three bases for dismissal, reliance on other than 13.001(b)(2) has been discouraged. See, e.g., Johnson, 796 S.W.2d at 706; Spellmon, 819 S.W.2d at 208; McDonald v. Houston Dairy, 813 S.W.2d 238, 238-39 (Tex. App.--Houston [1st Dist.] 1991, no writ); Birdo, 814 S.W.2d at 810.