Stephanie McWhorter v. State

• Court: Court of Appeals of Texas
• Decided: February 8, 2006
• Docket: 06-05-00279-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00279-CR

STEPHANIE MCWHORTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 12,541

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Stephanie McWhorter has filed a motion, signed by herself and counsel, in which she asks this Court to dismiss her appeal. Pursuant to Tex. R. App. P. 42.2, the motion is granted.

            We dismiss the appeal.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          February 7, 2006

Date Decided:             February 8, 2006

Do Not Publish

60;           

Memorandum Opinion by Justice Ross

Concurring Opinion by Justice Carter

          Duford Mitchell, a prison inmate, appeals from the dismissal of his in forma pauperis lawsuit. The trial court dismissed the suit as frivolous before service, stating that "based on the pleadings the Plaintiff failed to prove the facts to support his claim." In his petition, Mitchell alleged the defendants had confiscated, and thereafter converted or lost, a gold ring and a watch, with an alleged combined value of over $500.00. He alleged that, although the prison officials sent a ring and watch to his mother, the ring and watch she received were not his and that, when she came to the unit to obtain the correct items, the prison officials insisted the items she had received were the ones taken from Mitchell. Because this lawsuit was dismissed before service, we have nothing to review except Mitchell's pleadings and the documents attached to his pleadings.

          We review a dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ); see Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Abuse of discretion exists where a court acts without reference to applicable guiding principles, acts arbitrarily, or misinterprets or misapplies those guiding rules or the law. Vacca v. Farrington, 85 S.W.3d 438, 440 (Tex. App.—Texarkana 2002, no pet.); Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied). Trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814–15 (Tex. App.—Tyler 1994, no writ). We will affirm such a dismissal if it was proper under any legal theory. Birdo v. DeBose, 819 S.W.2d 212, 215 (Tex. App.—Waco 1991, no writ). In considering the record before us, we review and evaluate pleadings of inmates proceeding pro se in civil suits with liberality and patience. Foster v. Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.—Texarkana 2002, pet. denied); Brewer v. Collins, 857 S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.] 1993, no writ).

          This type of suit is controlled by Chapter 14 of the Texas Civil Practice and Remedies Code. Section 14.003(a)(2) provides that a court may dismiss before or after service of process if the court finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002).

In determining whether a claim is frivolous or malicious, the court 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 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) (Vernon 2002).

Without a Hearing, a Fact-based Dismissal Was Improper

          The Texas Supreme Court discourages courts from dismissing suits based solely on a determination that the inmate has a slight realistic chance of success. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990); Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 272 n.2 (Tex. App.—Texarkana 2003, no pet.).

          No hearing was conducted by the trial court. When the trial court dismisses a claim without a hearing, we are to determine on appeal simply whether the claim had no arguable basis in law, which we review de novo. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). That is because, when a claim is dismissed without a fact hearing, the trial court could not have determined the suit had no arguable basis in fact. Conway v. Castro, No. 12-03-00373-CV, 2004 Tex. App. LEXIS 4479, at *3 (Tex. App.—Tyler May 12, 2004, no pet.); Harrison v. Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d 882, 887 (Tex. App.—Houston [1st Dist.] 1995, no writ); see Vacca, 85 S.W.3d at 441; In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ).

          Mitchell's petition alleges causes of action against the Department, Nita Burgess (the property officer), and David Hudson (the warden) in both his or her official and personal capacities. Mitchell complains of conversion.

                     The Conversion Claim Against the Individuals Is Arguable

          Mitchell alleges the defendants permanently either negligently or intentionally deprived him of personal property—his ring and watch—by confiscating them and then refusing to produce and turn over the correct items. Conversion is defined as the wrongful exercise of dominion and control over another's property in denial of or inconsistent with his or her rights. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 n.44 (Tex. 2002). Applying the liberal standard applied to pleadings filed pro se by inmates, and considering the facts set out in Mitchell's petition, we conclude he has thus stated a claim for conversion that has an arguable basis in law.

          Because we find that the trial court could not have concluded there was no arguable basis in law to dismiss, we hold that the trial court abused its discretion in dismissing the entirety of this case as frivolous. See Sawyer, 983 S.W.2d at 311.

          We reverse the dismissal and remand to the trial court for further proceedings consistent with this opinion.

                                                                           Donald R. Ross

CONCURRING OPINION

          I concur that, without a hearing, it was improper to dismiss this case as frivolous since there was no factual basis for the finding. Only the pleadings were before the trial court. I have previously suggested that a significant improvement in the administration of the law would occur if each correctional institution in the state was equipped with video conferencing capability connected with the trial courts in counties where those institutions are located so that these hearings could be conducted by video conference. See In re Marriage of Buster, 115 S.W.3d 141 (Tex. App.—Texarkana 2003, no pet.) (Carter, J., concurring). That process would avoid the difficult logistical and security problems inherent in inmate lawsuits, provide inmates access to courts, and furnish the trial courts an efficient system for developing a factual basis for a decision. I urge the Legislature to authorize and fund this procedure.

Date Submitted:      January 6, 2005

Date Decided:         March 3, 2005