Freddie Lee Walker v. Janice O'Guin, E. Franco, and Victoria Dodson

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00368-CV

Freddie Lee Walker,

                                                                      Appellant

 v.

Janice O’Guin, E. Franco,

and Victoria Dodson,

                                                                      Appellees

From the 12th District Court

Walker County, Texas

Trial Court No. 22046

MEMORANDUM  Opinion

          The trial court dismissed inmate Freddie Lee Walker’s suit against various prison officials as frivolous under Chapter 14 of the Civil Practice and Remedies Code.  Walker contends in five issues that the court erred by: (1) requiring that the entire filing fee be paid from his inmate trust account; (2) failing to state in the dismissal order the precise statutory basis for dismissal; (3) dismissing his suit without providing an opportunity to amend his pleadings; (4) failing to hold a hearing on his motion for the Attorney General to show authority to represent the defendants under Rule of Civil Procedure 12; and (5) failing to rule on his motion to disqualify or recuse.  We will affirm.

Background

          Walker’s original petition stated a claim for declaratory and injunctive relief and named only Janice O’Guin as a defendant.  His claims relate to the alleged revocation of his status as a trusty with outside work privileges.  The original petition was accompanied by a request for issuance of summons, an affidavit of inability to pay costs, an affidavit regarding prior lawsuits, and a letter stating that prison officials would not provide a copy of his inmate trust account statement without a court order.

          The court ordered the district clerk to prepare a bill of costs and send a certified copy to Walker and to the Department of Criminal Justice Trust Fund along with an order requiring that twenty percent of the funds in Walker’s inmate account be withdrawn for payment of the filing fee for his lawsuit and that ten percent of monthly deposits thereafter be withdrawn for payment of the fee until the total fee was paid or Walker was released from prison.

          The court also signed an order requiring the Attorney General to: (1) review the pleadings and documents on file for compliance with Chapter 14 and “file as amicus curiae an advisory with the Court as to whether the inmate plaintiff has satisfied all of the statutory requirements”; and (2) obtain authority to represent the defendants and answer on their behalf within 60 days.

          Walker subsequently filed an amended petition, adding additional allegations and naming E. Franco and Victoria Dodson as additional defendants.  Walker’s amended petition was accompanied by a request for summonses for Franco and Dodson.  He contemporaneously filed a request for production and interrogatories.

          Walker filed an objection to the court’s order to the Attorney General on the primary ground that he had sued the named defendants in their individual capacities and not as representatives of the State.  Walker also requested that the Attorney General show authority to represent the defendants under Rule of Civil Procedure 12.

          Walker next filed an amended or supplemental objection to this order.  In this document, Walker renewed his objections to the order and also asked the trial judge to disqualify or recuse himself because he had “already abused his discretion in issuing an unduly vague ORDER for the Texas Attorney General to show authority to represent the Respondent’s.”

          The Attorney General filed its amicus advisory about one month after the court ordered same.  In this advisory, the Attorney General stated its opinion that Walker had failed to comply with the requirements of sections 14.004 and 14.006 of the Civil Practice and Remedies Code and that the court could dismiss Walker’s suit for these reasons without a hearing.

          The court later signed an order of dismissal without conducting a hearing.

Payment of Court Costs

          Walker contends in his first issue that the court erred by requiring that the entire filing fee be paid from his inmate trust account.  Walker relies on the Supreme Court’s decision in Bonds v. Texas Department of Criminal Justice, 953 S.W.2d 233 (Tex. 1997) (per curiam).  However, Bonds is distinguishable.

          Section 14.006 of the Civil Practice and Remedies Code provides in pertinent part:

(a) A court may order an inmate who has filed a claim to pay court fees, court costs, and other costs in accordance with this section and Section 14.007.  The clerk of the court shall mail a copy of the court’s order and a certified bill of costs to the department or jail, as appropriate.

(b) On the court’s order, the inmate shall pay an amount equal to the lesser of:

(1) 20 percent of the preceding six months' deposits to the inmate's trust account; or

          (2) the total amount of court fees and costs.

(c) In each month following the month in which payment is made under Subsection (b), the inmate shall pay an amount equal to the lesser of:

          (1) 10 percent of that month’s deposits to the trust account; or

          (2) the total amount of court fees and costs that remain unpaid.

.  .  .  .

(f) The inmate shall file a certified copy of the inmate’s trust account statement with the court.  The statement must reflect the balance of the account at the time the claim is filed and activity in the account during the six months preceding the date on which the claim is filed.  The court may request the department or jail to furnish the information required under this subsection.

.  .  .  .

Tex. Civ. Prac. & Rem. Code Ann. § 14.006(a)-(c), (f) (Vernon 2002).

          In Bonds, the defendant failed to provide a copy of his inmate trust account statement as required by section 14.006(f).  See id. § 14.006(f).  In dismissing the suit, the trial court simply taxed all court costs against the defendant without knowing whether twenty percent of his inmate account was a lesser sum and without limiting the order in the manner required by section 14.006.  See Bonds, 953 S.W.2d at 233.

          Here, Walker, like the defendant in Bonds, did not provide a copy of his inmate trust account statement.  However, the trial court in Walker’s case did not simply tax all court costs against him.  Rather, the court strictly followed the percentages mandated by section 14.006.  Thus, no error is shown, and we overrule Walker’s first issue.

Adequacy of Dismissal Order

          Walker contends in his second issue that the court erred by failing to state in the dismissal order the precise statutory basis for dismissal.  The Fourteenth Court of Appeals has rejected a similar complaint.

Chapter 14 of the Texas Civil Practice and Remedies Code grants trial courts special power to summarily dismiss prisoner suits, even in the absence of a hearing.  Compare Tex. Civ. Prac. Rem. Code Ann. § 14.003 (Vernon Supp. 2002) with Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999) (dismissal under Texas Rule of Civil Procedure 165a improper without giving notice of intent to dismiss stating grounds).  We therefore hold the court’s failure to specifically state the grounds for dismissal is not an abuse of discretion.

Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

          We agree with this reasoning.  Accordingly, we overrule Walker’s second issue.

Opportunity to Amend

          Walker contends in his third issue that the court erred by dismissing his suit without providing an opportunity to amend his pleadings.  However, Texas courts have consistently held that a trial court has discretion to dismiss a suit as frivolous under Chapters 13 and 14 of the Civil Practice and Remedies Code without providing such an opportunity.  See Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—Beaumont 2001, no pet.); Bohannon v. Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 116 (Tex. App.—Austin 1997, writ denied); Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no writ).  Accordingly, we overrule Walker’s third issue.

Attorney General’s Authority

          Walker contends in his fourth issue that the court erred by failing to hold a hearing on his motion for the Attorney General to show authority to represent the defendants under Rule of Civil Procedure 12.

          Rule 12 provides:

          A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act.  The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion.  At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party.  Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.  The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.

Tex. R. Civ. P. 12.

          Here, the Attorney General appeared as amicus curiae,[1] a friend of the court, and not as the defendants’ representative.  Therefore, Rule 12 does not apply, and we overrule Walker’s fourth issue.

Disqualification or Recusal

          Walker contends in his fifth issue that the court erred by failing to rule on his motion to disqualify or recuse.

          When presented with a proper motion to disqualify or recuse himself, a trial judge must disqualify or recuse himself, or he must request that the presiding judge of the administrative judicial district assign another judge to hear the motion.  Tex. R. Civ. P. 18a(c); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex. App.—Waco 2002, no pet.).  Rule 18a(a) requires that such a motion be verified.  Tex. R. Civ. P. 18a(a); Barron v. Attorney Gen. of Tex., 108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.); Spigener, 80 S.W.3d at 181; Gill v. Tex. Dep’t of Criminal Justice, 8 S.W.3d 576, 579 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

          Walker did not verify his motion to disqualify or recuse, nor did he support it with an unsworn declaration as provided by section 132.001 of the Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon 2005).  Therefore, the trial judge did not err by failing to disqualify or recuse himself or to refer the motion to the presiding judge of the administrative judicial district.  See Barron, 108 S.W.3d at 382-83; Spigener, 80 S.W.3d at 181; see also Gill, 3 S.W.3d at 579 (holding inmate waived right to complain of court’s failure to rule on recusal motion because the motion was not verified or supported by unsworn declaration).

          However, a trial judge’s disqualification cannot be waived.  Spigener, 80 S.W.3d at 180; Zarate v. Sun Operating, Ltd., 40 S.W.3d 617, 621 (Tex. App.—San Antonio 2001, pet. denied).  A trial judge may be disqualified under either article V, section 11 of the Texas Constitution or section 74.053 of the Government Code (applicable to assigned judges).  See Spigener, 80 S.W.3d at 179.  Because the trial judge in Walker’s case is the elected judge and not sitting by assignment, section 74.053 does not apply.

          Article V, section 11 provides in pertinent part:

          No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.

Tex. Const. art. V, § 11. 

          Walker alleged in his motion that the trial judge is disqualified because the judge had “already abused his discretion in issuing an unduly vague ORDER for the Texas Attorney General to show authority to represent the Respondent’s.”  This does not constitute any of the grounds for disqualification specified in article V, section 11.  Thus, Walker’s motion does not state a valid basis for disqualification, and any error in the trial judge’s failure to refer Walker’s motion to the presiding judge of the administrative judicial district is harmless.  Spigener, 80 S.W.3d at 181.  Accordingly, we overrule Walker’s fifth issue.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed January 10, 2007

[CV06]

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[1]           Black’s Law Dictionary defines the term “amicus curiae” as follows:

A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.

Black’s Law Dictionary 93 (8th ed. 2004).