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Garcia v. Collins8/17/1995
This is an appeal from the trial court's dismissal of appellant Alfred Flores Garcia's pro se, in forma pauperis suit. In a sole point of error, appellant contends that the trial court abused its discretion by dismissing his suit as frivolous. We affirm the trial court's judgment.
FACTS
Appellant, who is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ), sought recovery under the Texas Tort Claims Act for injuries he allegedly sustained when an unnamed employee of the TDCJ performed an ear irrigation on appellant using the wrong instrument. In the suit, he named the director of the TDCJ, James A. Collins, and the Ramsey One Unit medical department director, name unknown, as defendants. On its own motion and without a hearing, the trial court dismissed appellant's suit with prejudice under TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 13.001(b)(2) (Vernon Supp. 1995), as having no arguable basis in law or fact.
STANDARD OF REVIEW
A pro se, in forma pauperis suit may be dismissed either before or after service of process if, under TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 13.001(a) (Vernon Supp. 1995), the trial court finds that (1) the allegation of poverty is false; or (2) the action is frivolous or malicious. McDonald v. Houston Dairy, 813 S.W.2d 238, 238 (Tex. App. --Houston [1st Dist.] 1991, no writ). The trial court has broad discretion in its determination to dismiss a suit under section 13.001. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. -- Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990); Onnette v. Reed, 832 S.W.2d 450, 452 (Tex. App. -- Houston [1st Dist.] 1992, no writ). A trial court can dismiss a suit as frivolous if it determines that the claim has no arguable basis in law or in fact. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 13.001(b)(2) (Vernon Supp. 1995). In the present case, the trial court's order specifically stated that the suit was dismissed because it was frivolous under section 13.001(b)(2), i.e., the claim had no arguable basis in law or in fact. When a trial court, as in the present case, dismisses a cause without a fact hearing, the trial court could not have determined that the suit had no arguable basis in fact. McDonald, 813 S.W.2d at 239. Therefore, in such a case, the issue is whether the trial court properly determined that there was no arguable basis in law for the suit. Id.
ANALYSIS
The Texas Tort Claims Act provides:
"A governmental unit in the state is liable for:
(1) property damage, personal injury , and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if:
(a) the property damage, personal injury , or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(b) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 101.021 (Vernon Supp. 1995) (emphasis added).
Appellant did not bring his claim against a "governmental unit," but instead sued Collins, as Director of TDCJ, and the unknown medical director of the Ramsey Unit One. The Texas Tort Claims Act does not govern suits brought directly against an employee of the State, regardless of the capacity in which he acted. Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App. -- Houston [1st Di
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