in Re: Joseph Alarcon Gonzales, Relator

NO. 07-04-0434-CV NO. 07-04-0435-CV NO. 07-04-0436-CV NO. 07-04-0437-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A SEPTEMBER 8, 2004 ______________________________ IN RE ASHLEY GUTIERREZ BY AND THROUGH HER NEXT FRIEND MICHELLE CORDOVA, RELATOR IN RE JOSEPH ALARCON GONZALEZ, RELATOR _________________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION ON PETITIONS FOR WRIT OF MANDAMUS AND PETITIONS FOR WRIT OF PROHIBITION By these original proceedings, Relators Ashley Gutierrez, by and through her next friend Michelle Cordova, and Joseph Alarcon Gonzalez, natural parents of Ashley Gutierrez, seek a writ of mandamus denying "the standing of " Jeffrey Donald Gurney and Alicia Munoz Gurney to pursue "their second cause of action" relating to cause number 54,925-B, District Court, Randall County, Texas. They also request that we issue a writ of prohibition that the Honorable John Board, Judge of the 181st District Court, and the Honorable James Anderson, Judge of the County Court at Law of Randall County, not proceed with hearings in cause numbers 51,715-B and 54,925-B until a ruling on the petitions for writ of mandamus. A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy at law by appeal. Walker v, Packer, 827 S.W.2d 833, 837-38 (Tex. 1992). Moreover, an appeal, not an original proceeding, is the appropriate method to remedy a trial court's failure to give preclusive effect to a final judgment and thus appellate courts have no authority to issue writs of prohibition to protect unappealed judgments. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989). Accordingly, the petitions for writ of mandamus and writ of prohibition are denied. Per Curiam 2000, pet. denied); Sawyer v. Texas Dep't of Crim. Justice, 983 S.W.2d 310, 311 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). (1) With this said, we turn to the situation before us. Hohn contended, via his original petition, that Gilmore acted negligently and thereby denied him his constitutional right to access the courts. This occurred when she neglected to file mark and assign a cause number to the documents he sent. However, negligent conduct is not actionable as a violation of the United States Constitution. See e.g., Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 666, 88 L.Ed.2d 662, 663 (1986) (refusing to recognize constitutional torts sounding in negligence); Williams v. Scott, No. 04-99-0830-CV, 2000 Tex. App. LEXIS 7731 at 4 (Tex. App.-San Antonio November 15, 2000, no pet.) (not designated for publication) (stating that injuries arising from a prison guard's negligent conduct are not actionable under 42 U.S.C. §1983). So, to the extent that he invoked the United States Constitution to recover for injuries arising from negligent conduct, the claim is frivolous. Nor can we say that he fares any better viz his claim implicating the Texas Constitution. It is based upon the open courts provision in art. I, §13 of that document. Assuming arguendo that the provision affords one a private right of action for damages, see City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995) (holding that not every provision of the Texas Constitution grants one a private right of action for damages), it has been held that the clause applies only to statutory restrictions upon a legitimate common law cause of action. Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 410 (Tex. 1997). Given this, Hohn must illustrate that some legislative edict impeded his access, but he does not. Instead, he averred that the negligent actions of Gilmore did so. Consequently, his allegations also fail to aver a recognizable claim under art. I, §13 of the Texas Constitution. As for the allegation that the clerk violated Rule 24 of the Texas Rules of Civil Procedure, Hohn proffers neither authority nor substantive argument suggesting that the rules of civil procedure create private causes of action for damages. Given this dearth of authority and analysis, he waived any claim founded upon Rule 24. In re Williams, 998 SW.2d 724, 730 (Tex. App.-Amarillo 1999, no pet.). Because Hohn did not establish that his petition averred a viable cause of action, the trial court was entitled to treat his allegations as frivolous and dismiss the suit. Tex. Civ. Prac. & Rem. Code Ann. §13.001(a)(2) (Vernon 2002) (stating that a court "may dismiss the action on a finding that . . . [it] is frivolous or malicious"); Doyle v. Lucy, No. 14-03-0039-CV, 2004 Tex. App. LEXIS 2790 at 9 (Tex. App.-Houston [14th Dist.] 2004, March 30, 2004, no pet.) (stating that the trial court need not provide the inmate opportunity to amend his petition to state a viable claim before dismissing it). Accordingly, we modify the order to illustrate that the dismissal was without prejudice, see Mullins v. Estelle High Security Unit, 111 S.W.3d 268, 273-74 (Tex. App.-Texarkana 2003, no pet.) (modifying the dismissal to be without prejudice when the frivolous allegations may be susceptible to correction), and affirm it as modified. Brian Quinn Chief Justice 1. We construe an action having no arguable basis in law as also failing to state a cause of action.