Lawrence Edward Thompson v. Attorney General of Texas

CV4-670.Thompson.draft TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00670-CV Lawrence Edward Thompson, Appellant v. Attorney General of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. 94-06063, HONORABLE PAUL R. DAVIS, JUDGE PRESIDING PER CURIAM Lawrence Edward Thompson, proceeding pro se, in forma pauperis, appeals the trial court's dismissal of his lawsuit. Thompson, a state inmate, complained that an assistant attorney general negligently caused him to suffer personal injuries and thus he was entitled to recover money damages pursuant to various provisions of state and federal law. On the attorney general's motion, the trial court dismissed appellant's cause as frivolous because it had no arguable basis in fact or law and its ultimate chance of success was slight. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 1991). By two points of error, appellant contends that the trial court abused its discretion by dismissing his cause and by not allowing him to appear in court at the hearing on the attorney general's motion to dismiss. We will affirm the trial court's judgment of dismissal. BACKGROUND An assistant attorney general informed prison officials that he had received a letter from appellant in an envelope with the return address of another inmate. The use of another inmate's address information violates prison disciplinary rules and procedures. Prison officials conducted a disciplinary hearing that resulted in appellant's receiving a verbal reprimand, thirty days commissary restriction, and loss of good time credit. Appellant sued the attorney general's office alleging that, but for the assistant attorney general's negligent use of tangible personal property, he would not have suffered anxiety and mental anguish and would not have lost his good time credit. Additionally, appellant contended that, because the attorney general acted willfully and with a conscious disregard for appellant, he was entitled to exemplary damages. Appellant also asserted claims of retaliation, religious discrimination, and psychological trauma. Except to recite in his petition that he asserts claims against the attorney general for violating his religious freedom and violating chapter 42, section 1983 of the United States Code, he does not explain how the attorney general violated his rights. The attorney general's office filed a motion to dismiss the cause as frivolous and claimed immunity from the lawsuit. Appellant responded that the attorney general was not immune from this lawsuit because (1) the assistant attorney general had used tangible personal property to injure appellant; (2) the attorney general could not retaliate against a citizen on the basis of race, sex, or national origin; and (3) the attorney general has no immunity from a lawsuit when a litigant's religion is the basis for a constitutional violation. The trial court dismissed appellant's lawsuit as frivolous. DISCUSSION By his first point of error, appellant contends that the trial court erred by dismissing his claims as frivolous with no arguable basis in law or fact. A trial court has broad discretion to dismiss a lawsuit pursuant to section 13.001. Johnson v. Franco, 893 S.W.2d 302, 303 (Tex. App.--Houston [1st Dist.] 1995, writ dism'd w.o.j.); Carson v. Gomez, 841 S.W.2d 491, 494 (Tex. App.--Houston [1st Dist.] 1992, no writ); Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App.--Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). When, as here, the trial court did not hold a fact hearing before dismissing the lawsuit the trial court may not determine that the lawsuit had no basis in fact. Franco, 893 S.W.2d at 303. Therefore we review whether the trial court abused its discretion by dismissing the lawsuit and determining that the cause had no arguable basis in law and that its ultimate chance of success was slight. Id. Appellant does not deny that he used another inmate's address on his correspondence in violation of the prison policy. Additionally, appellant does not challenge the prison policy or the implementation of the policy by the prison officials against him in this instance. Rather, appellant contends that, by liberally construing his petition, he has asserted a valid cause of action against the attorney general because an assistant attorney general negligently used tangible property that caused him to be subjected to a prison disciplinary proceeding that resulted in his damages. We disagree. Appellant claims that the attorney general's office was negligent in its use of tangible property. See Tex. Civ. Prac. & Rem. Ann. §§ 101.001-.107 (West 1986 & Supp. 1996). Appellant, however, does not allege any facts to show how the attorney general negligently used tangible property other than noting that the assistant attorney general wrote a letter to prison officials. Information is intangible and the fact that it is written does not render it tangible property. University of Texas Medical Branch v. York, 871 S.W.2d 175, 178 (Tex. 1994). We conclude that the trial court did not abuse its discretion in dismissing appellant's claims as frivolous because they had no basis in law and the ultimate chance of success on the claims was slight. We overrule appellant's first point of error. By his second point of error, appellant complains that the trial court abused its discretion by not allowing him to appear at the trial court's hearing regarding the attorney general's motion to dismiss appellant's causes of action. The trial court may not deny appellant access to the courtroom merely because he is an inmate. Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.--San Antonio 1991, no writ). If a pro se indigent inmate is required to be in court, then provisions must be made for his attendance. Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989) (orig. proceeding). Appellant's right to access the courts, however, does not give him an absolute right to leave prison to appear in court. Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.--Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423-24 (Tex. App.--Dallas 1987, no writ). Inasmuch as an inmate has no absolute right to appear in court in a civil case he has initiated, and there are many ways one may get evidence before the court, it follows that appellant must show why his personal appearance in the courtroom was required. Brewer, 737 S.W.2d at 424. Appellant did not explain to the trial court about why he should have been brought to the courtroom for the State's dismissal hearing. Whether an inmate should be allowed to appear in court in a civil trial is within the trial court's discretion. Birdo, 775 S.W.2d at 414. When considering whether an inmate may appear in court, the trial court must generally balance the preservation of the correctional system's integrity with the inmate's right of access to the courts. Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.--Corpus Christi 1995, no writ). Factors to be considered by the trial court include: (1) the cost and inconvenience of transporting the inmate to court; (2) the security risk and potential danger of allowing the prisoner to attend open court; (3) whether the prisoner's claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the prisoner is released from incarceration; (5) whether the inmate can and will offer admissible, noncumulative testimony which could not be offered effectively by deposition, telephone, or otherwise; (6) whether the prisoner'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. Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.--Beaumont 1994, no writ); Armstrong v. Randle, 881 S.W.2d 53, 58 (Tex. App.--Texarkana 1994, writ denied). After considering these factors, we conclude that appellant has failed to show that the trial court abused its discretion by not providing for his attendance at the hearing on the state's motion to dismiss appellant's claims. We overrule appellant's second point of error. CONCLUSION We affirm the trial court's judgment of dismissal. Before Chief Justice Carroll, Justices Aboussie and Kidd Affirmed Filed: May 22, 1996 Do Not Publish has asserted a valid cause of action against the attorney general because an assistant attorney general negligently used tangible property that caused him to be subjected to a prison disciplinary proceeding that resulted in his damages. We disagree. Appellant claims that the attorney general's office was negligent in its use of tangible property. See Tex. Civ. Prac. & Rem. Ann. §§ 101.001-.107 (West 1986 & Supp. 1996). Appellant, however, does not allege any facts to show how the attorney general negligently used tangible property other than noting that the assistant attorney general wrote a letter to prison officials. Information is intangible and the fact that it is written does not render it tangible property. University of Texas Medical Branch v. York, 871 S.W.2d 175, 178 (Tex. 1994). We conclude that the trial court did not abuse its discretion in dismissing appellant's claims as frivolous because they had no basis in law and the ultimate chance of success on the claims was slight. We overrule appellant's first point of error. By his second point of error, appellant complains that the trial court abused its discretion by not allowing him to appear at the trial court's hearing regarding the attorney general's motion to dismiss appellant's causes of action. The trial court may not deny appellant access to the courtroom merely because he is an inmate. Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.--San Antonio 1991, no writ). If a pro se indigent inmate is required to be in court, then provisions must be made for his attendance. Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989) (orig. proceeding). Appellant's right to access the courts, however, does not give him an absolute right to leave prison to appear in court. Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.--Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423-24 (Tex. App.--Dallas 1987, no writ). Inasmuch as an inmate has no absolute right to appear in court in a civil case he has initiated, and there are many ways one may get evidence before the court, it follows that appellant must show why his personal appearance in the courtroom was required. Brewer, 737 S.W.2d at 424. Appellant did not explain to the trial court about why he should have been brought to the courtroom for the State's dismissal hearing. Whether an inmate should be allowed to appear in court in a civil trial is within the trial court's discretion. Birdo, 775 S.W.2d at 414. When considering whether an inmate may appear in court, the trial court must generally balance the preservation of the correctional system's integrity with the inmate's right of access to the courts. Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.--Corpus Christi 1995, no writ). Factors to be considered by the trial court include: (1) the cost and inconvenience of transporting the inmate to court; (2) the security risk and potential danger of allowing the prisoner to attend open court; (3) whether the prisoner's claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the prisoner is released from incarceration; (5) whether the inmate can and will offer admissible, noncumulative testimony which could not be offered effectively by deposition, telephone, or otherwise; (6) whether t