Dale Alan Curtis v. William J. Kountz ( 2006 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-036 CV ____________________

DALE ALAN CURTIS, Appellant

V.

WILLIAM J. KOUNTZ, ET AL., Appellees

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-175,308

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MEMORANDUM OPINION

Pro se appellant Dale Alan Curtis, an inmate in the Texas Department of Criminal Justice, sued appellees Shane E. Gray, William J. Kountz, Leroy Anderson, David W. Aldridge, and Sharon L. Wilcox for alleged violations of the Texas Penal Code, retaliation, civil rights violations, theft, harassment, abuse of official capacity, filing a false disciplinary action, and removing property from his cell without providing him confiscation papers. Curtis filed an affidavit that averred he was unable to pay court costs. Appellees filed a motion to dismiss pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (Vernon 2002). The trial court granted appellees' motion and entered an order dismissing the case. In its dismissal order, the trial court found that "the petition filed by the plaintiff is frivolous and not in compliance with the requirements set forth in Texas Civil Practices [sic] and Remedies Code, Chapter 14." Curtis filed this appeal, in which he raises four issues for our consideration.

In his first issue, Curtis argues the trial court abused its discretion by dismissing his case as frivolous. Curtis's argument for issue one states general legal principles concerning abuse of discretion, but it does not explain how the trial court abused its discretion in this case, nor does that section of the brief contain record references. We cannot discern the specific action of the trial court that Curtis contends was an abuse of discretion. ⁽¹⁾ Therefore, we overrule issue one. See Tex. R. App. P. 38.1(h) (Appellant's brief must contain a clear and concise argument for the contentions made.).

In his second issue, Curtis asserts the trial court erred by failing to hold a hearing before dismissing his case. Section 14.003(c) provides as follows: "In determining whether Subsection (a) applies, the court may hold a hearing. The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court." Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002). The statute states that the trial court "may" hold a hearing, but it does not require the trial court to do so before dismissing a claim. See Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005) ("'May' creates discretionary authority or grants permission or a power."); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.--Texarkana 2005, no pet.) ("The use of the word 'may' in a statute shows that the provision is discretionary and not mandatory."). Issue two is overruled.

In his third issue, Curtis argues the trial court "used misinterpretation of evidence to be used . . . by the Defendants that were submitted in the motion to dismiss." Curtis's arguments under this issue are, at best, difficult to understand. Curtis seems to argue that appellees' motion to dismiss mischaracterized his claim as "a 42 U.S.C. § 1983 action to overturn a disciplinary case[,]" when his case is actually a civil action brought "in accordance with the Texas Government Code, Chapter 2001." Curtis also seems to argue that appellees committed theft, which proves that they took his property without proper authorization with a retaliatory motive. Lastly, Curtis maintains that the allegedly retaliatory taking of his personal property "was unlawful for the purpose of the Theft Liability Act."

Curtis argues that his claims are brought pursuant to "Texas Government Code, Chapter 2001" rather than 42 U.S.C. § 1983. ⁽²⁾ However, section 2001.226 states, "This chapter does not apply to a rule or internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure." Tex. Gov't Code Ann. § 2001.226 (Vernon 2000). It appears that Curtis complains of the taking of certain personal property during an inspection of his cell by TDCJ officials. Such a claim clearly falls within the exclusion set forth in section 2001.226. See Tex. Gov't Code Ann. § 2001.226 (Vernon 2000).

Curtis's petition fails to establish that appellees wrongfully took his property. Rather, his petition seems to state that appellees took his property while acting pursuant to their official authority under state law, but that such authority was exercised in a retaliatory manner. In support of his retaliation claim, Curtis cites Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995), a § 1983 case. However, Curtis's brief specifically denies that he is making a claim under § 1983, and he cites no other authorities indicating that a cause of action for retaliation exists outside of § 1983.

The Theft Liability Act provides that "A person who commits theft is liable for the damages resulting from the theft." Tex. Civ. Prac & Rem. Code Ann. § 134.003 (Vernon 2005). The Texas Penal Code defines the offense of theft as unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2006). As previously noted, Curtis alleges appellees, acting under the authority of state law, searched his cell and took his property. Such allegations do not establish an unlawful appropriation of property, and Curtis therefore does not state a claim under the Theft Liability Act. We overrule issue three.

Curtis's fourth issue asserts the trial court improperly dismissed his case with prejudice. We agree. The trial court's judgment recites that Curtis's petition does not comply with the requirements of chapter 14 of the Texas Civil Practice and Remedies Code. The order does not explain how Curtis's petition fails to comply or the basis for dismissing the case as frivolous. ⁽³⁾ "A dismissal for failure to comply with the rules governing the filing of in forma pauperis suits is not a ruling on the merits; accordingly, it is error to dismiss the suit with prejudice if the inmate was not first provided with an opportunity to amend his pleadings." Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). Therefore, we reform the trial court's judgment by deleting the words "with prejudice" and substituting the words "without prejudice." See id. We sustain issue four.

We reform the trial court's judgment to provide that the cause is dismissed without prejudice. We affirm the judgment as reformed.

AFFIRMED AS REFORMED.

STEVE McKEITHEN

Chief Justice

Submitted on August 28, 2006

Opinion Delivered September 21, 2006

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. We endeavor to address these general propositions where they are specifically briefed under issues two through four.

2. The cases cited by Curtis on appeal involve alleged violations of 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled, Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995).

3. 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).