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Broussard v. Green8/16/2001
Jeffery Broussard, in an inmate civil action, appeals the dismissal of his suit for money damages against the Texas Department of Criminal Justice and John O'Neill Green, in his capacity as a staff attorney for the State Counsel for Offenders, a division of the TDCJ. On appeal, Broussard claims the trial court abused its discretion in dismissing his suit as frivolous. We affirm.
Facts
After a hearing at which Broussard gave testimony to a hearing officer and presented a legal brief on his own behalf, Broussard's parole was revoked in July of 1999.
In early October 1999, Broussard sent a letter to the office of the State Counsel for Offenders requesting its assistance in reviewing and/or appealing his parole revocation. Green, a staff attorney at the Counsel's office, was unable to determine the nature of Broussard's request, and sent a letter on October 6, 1999 asking Broussard for further information to determine the nature of his problem. Green's letter also asked for any "legal papers" Broussard had received, in the event that any deadlines were imminent. Broussard alleges he then sent Green a brief, a writ of habeas corpus, and his parole revocation documents. When it became apparent that Broussard was requesting aid in the review of his revocation process, another Counsel staff attorney sent Broussard a letter in November 1999 explaining that the Counsel did not assist offenders in their revocation proceedings. According to Broussard, his subsequent repeated requests for the return of his documents were unsuccessful. He alleges he was unable to mount a proper challenge to his parole revocation without these documents.
Broussard then filed suit against Green, the State Counsel for Offenders, and TDCJ for fraud, withholding evidence, violations of the Due Process Clause of the 14th amendment, civil conspiracy, professional misconduct, negligence, legal malpractice, and "committing a private wrong." In his petition, Broussard sought recovery of monetary damages for personal injury , namely, mental anguish, in the amount of $50,000.
Analysis
Broussard asserts that the trial court improperly dismissed his cause as frivolous. A trial court may dismiss a suit brought in forma pauperis by finding that it is frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.002, 14.003(a)(2) (Vernon Supp. 2001). Under section 14.003(b), the court, in determining whether an action is frivolous or malicious, may consider whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove a set of facts in support of the claim; or (4) 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).
Under decisional law, the proper factor among these is whether the complaint "lacks an arguable basis in law or in fact." Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990) (per curiam). Trial courts have broad discretion to dismiss frivolous suits when a plaintiff files an affidavit of inability to pay. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Appellate courts will review a trial court's dismissal under an abuse of discretion standard. Lentworth, 981 S.W.2d at 722; Carson v. Gomez, 841 S.W.2d 491, 494 (Tex. App.--Houston [1st Dist.] 1992, no writ). A trial court abuses its discretion when it acts arbitrarily, capriciously, and without reference to guiding rules or principles. Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.--Houston [1st Dist.] 1993, no writ).
Page 1 2 Texas Personal Injury Attorneys
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