Michael E. Geiger v. Santiago Garcia, Jr., Officer Harper, Billy Johnson, Theresa Place, Randall Hemy, Mark Cole, Lt. Jenkins, Daryl Sutton, and T.D.C.J.

• Court: Court of Appeals of Texas
• Decided: October 7, 2009
• Docket: 10-07-00404-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-07-00404-CV

MICHAEL E. GEIGER, Appellant v.

SANTIAGO GARCIA, JR., OFFICER HARPER, BILLY JOHNSON, THERESA PLACE, RANDALL HEMY, MARK COLE, LT. JENKINS, DARYL SUTTON, AND T.D.C.J., Appellees

From the 278th District Court Walker County, Texas Trial Court No. 23931

MEMORANDUM OPINION

Michael E. Geiger, a prisoner, appeals the dismissal of his lawsuit against several

employees of the Texas prison system. The trial court dismissed his lawsuit with

prejudice as being frivolous. We affirm. AUTHORITY OF ATTORNEY GENERAL

In his first issue, Geiger contends the trial court’s dismissal was improper

because the processing of Geiger’s complaint was not complete due to the unauthorized

answer filed by the Attorney General on behalf of the defendants below. Under this

issue, Geiger first argues that because the trial court ordered the Office of the Attorney

General to file an amicus curiae advisory to the trial court regarding whether Geiger

had complied with the filing requirements of Chapter 14 of the Texas Civil Practice and

Remedies Code, the trial court gave the power to decide the case to the Attorney

General. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 14.001-14.014 (Vernon 2002). We

disagree with Geiger.

The trial court is not prohibited from entertaining suggestions from an amicus

curiae, as a friend of the court, regarding questions apparent from the record in the

case. See Mason v. Wood, 282 S.W.3d 189, 191 (Tex. App.—Beaumont 2009, no pet.). This

does not mean that the trial court is abdicating its power. Furthermore, the Attorney

General did not file an amicus curiae advisory regarding whether Geiger complied with

the requirements of Chapter 14, but filed an answer and motion to dismiss on behalf of

the defendants. Such representation is permitted by statute. See TEX. CIV. PRAC. &

REM.CODE ANN. § 104.004 (Vernon 2005); Mason, 282 S.W.3d at 192.

That leads us to Geiger’s other argument under this issue: that the Attorney

General never provided verification of his authority to represent the defendants. “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

Geiger v. Garcia Page 2 without authority, cause the attorney to be cited to appear before the court and show

his authority to act.” TEX. R. CIV. P. 12. Geiger never contested the Attorney General’s

authority to represent the defendants at the trial court. He cannot now raise this

complaint on appeal. See TEX. R. APP. P. 33.1; see also Kindle v. Wood County Elec. Co-Op,

Inc., 151 S.W.3d 206, 210 (Tex. App.—Tyler 2004, pet. denied). Geiger’s first issue is

overruled.

HEARING

In his second and fourth issues, Geiger complains that the trial court erred in

dismissing his case without a hearing and without an opportunity to respond to the

defendants’ motion to dismiss. The trial court's decision whether to conduct a hearing

on a motion to dismiss under section 14.003 is discretionary. See TEX. CIV. PRAC. & REM.

CODE ANN. § 14.003(c) (Vernon 2002) (the court "may hold a hearing" to determine

whether to dismiss claim); Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001,

no pet). Further, the trial court is not required to provide Geiger with an opportunity to

respond before dismissing his claim under section 14.003. See, e.g., Gowan v. Texas Dep't

of Crim. Justice, 99 S.W.3d 319, 323 (Tex. App.—Texarkana 2003, no pet.). Accordingly,

Geiger’s second and fourth issues are overruled.

In his fifth issue, Geiger argues that the dismissal with prejudice violated due

process because the case was not decided by a jury or in open court. Again, there is no

requirement that a hearing be held before dismissing an inmate’s litigation under

Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(c) (Vernon 2002). Geiger’s

fifth issue is overruled.

Geiger v. Garcia Page 3 Findings of Fact and Conclusions of Law

In his sixth issue, Geiger states that the trial court erred by including its findings

of fact and conclusions of law in its order of dismissal and omitting such findings and

conclusions from the clerk’s record to deny him his right to appeal. Under this issue

and elsewhere in his brief, Geiger actually complains that the basis for the trial court’s

frivolousness determination was not apparent from the order and that because he

requested findings of fact and conclusions of law, the trial court erred in not doing so.

Geiger filed a request for findings of fact and conclusions of law along with his

notice of appeal. Because the trial court did not file findings or conclusions, Geiger was

then required to file a “Notice of Past Due Findings of Fact and Conclusions of Law.”

TEX. R. CIV. P. 297. He did not. Even if Geiger was entitled to have findings of fact and

conclusions of law, the failure to file a notice of past due findings waives the right to

complain about the trial court's failure to file findings of fact and conclusions of law.

Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.—Houston [14th

Dist.] 2000, no pet.); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255

(Tex. 1984). Accordingly, Geiger’s sixth issue is overruled.

CHARACTERIZATION OF GEIGER’S CLAIM

In his third issue, Geiger contends the trial court violated his constitutional rights

when the dismissal of his lawsuit was based on the defendants’ response characterizing

Geiger’s suit as a § 19831 claim. Under this issue and throughout his brief, Geiger’s

complaint is against the defendants’ characteristic of Geiger’s suit; it is not that the trial

1 42 U.S.C.A. § 1983.

Geiger v. Garcia Page 4 court erred in dismissing the lawsuit. Geiger argues that he brought his suit pursuant to

the Texas Tort Claims Act. We cannot say, after reviewing Geiger’s petition, that he

brought his suit pursuant to the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(1) (Vernon 2008); Mission Consolidated Ind. Sch. Dist. v. Garcia, 253

S.W.3d 653, (Tex. 2008) (The Act generally waives governmental immunity to the extent

that liability arises from the "use of a motor-driven vehicle or motor-driven equipment"

or from a "condition or use of tangible personal or real property."). Accordingly, we do

not fault the defendants for allegedly mis-characterizing Geiger’s claim. His third issue

is overruled.

Having overruled each issue on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed October 7, 2009 [CV06]

Geiger v. Garcia Page 5