TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00305-CV
Donald Ray McCray, Appellant
v.
James R. Hine and Betty R. Hable, Appellees
NO. 99-03390, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
James R. Hine is the executive director of the Texas Department of Protective and Regulatory Services ("DPRS"). Betty R. Hable is the director of DPRS. McCray, a pauper inmate, and his family apparently were investigated by DPRS.
In the trial court, McCray alleged Hine told him that a former DPRS caseworker stole McCray's family's case records. McCray alleged that an assistant to Hine reported the file missing, and an investigation initiated by Hable pointed to the former caseworker. McCray alleged that Hine violated state law by failing to report the theft to state law enforcement. He asserted that state agencies are required to prepare and keep on file a complete written report of each DPRS investigation. See Tex. Fam. Code Ann. § 261.402 (West 1996). He asserted that biological parents are entitled to certain confidential DPRS papers used in an investigation of child abuse or neglect. See Tex. Fam. Code Ann. §§ 261.201 & 261.402 (West 1996 and West Supp. 1999). He further asserted that these records are otherwise confidential. He finally noted that government agencies cannot suspend, terminate, or discriminate against a public employee who in good faith reports a violation of the law to an appropriate law enforcement authority. See Tex. Govt. Code Ann § 554.002 (West Supp. 1999). McCray requested a temporary injunction (but did not discuss what behavior he wanted enjoined), $2,000 in actual damages, $2,000 in punitive damages, costs, and attorney's fees.
Hine and Hable moved to dismiss on grounds that McCray failed to comply with statutes governing litigation by pauper inmates. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004-.006 (West Supp. 1999). They complained that McCray did not file the affidavit required of pauper inmates regarding previous litigation and its outcome. Id. § 14.004. They also complained that he did not file an affidavit stating the date that the prison system denied his grievance. Id. § 14.005. They finally complained that he failed to file a certified copy of his trust account statement showing his account balance and account activity for the six months preceding the filing of the suit. Id. § 14.006.
McCray objected to the motion to dismiss, complaining that appellees incorrectly accused him of lying. He also asserted that he did not have to follow the grievance procedure and that appellees filed the motion to dismiss to enable DPRS to conceal papers from the court.
The trial court granted the motion to dismiss without specifying a basis.
Under procedures for reviewing litigation by pauper inmates, we can reverse the dismissal of the trial-court judgment only if the court abused its discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no pet.). We must determine, not whether we would have decided the way the trial court did, but whether the court acted without reference to any guiding principles or acted arbitrarily or unreasonably. Id.
The trial court's dismissal of the action despite McCray's objections does not reveal an abuse of discretion. Contrary to McCray's assertion, we find no allegation of perjury in the motion to dismiss. Appellees' motive in filing the motion to dismiss is irrelevant to determination of whether the motion is meritorious. McCray, however, correctly asserted that the inmate grievance procedure was inapplicable to complaints against persons (e.g., these DPRS officials) outside of the Texas Department of Criminal Justice--Institutional Division. See Tex. Govt. Code Ann. § 501.008(a) (West 1998). McCray did not object to every basis for the motion to dismiss. We must consider whether the court abused its discretion by basing its dismissal on any of the remaining grounds of the motion.
One of appellees' grounds for dismissal was McCray's failure to file an affidavit regarding previous litigation and its outcome. Courts have upheld dismissals based on failure to file the affidavit regarding past litigation. See Bell v. Texas Dept. of Criminal Justice--Inst. Div., 962 S.W.2d 156, 158 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Hickson, 926 S.W.2d at 399. The Houston Fourteenth Court held that, without the affidavit regarding previous suits, the reviewing court is "entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous." Bell, 962 S.W.2d at 158. The Waco court held that, because the court had the power to dismiss suits as frivolous when the inmate filed a false affidavit, the court could also dismiss for failure to file a required affidavit. See Hickson, 926 S.W.2d at 399.
We find no affidavit by McCray regarding previous litigation in the record. This failure to file the required affidavit is among the bases for appellees' motion to dismiss. McCray did not at trial, and does not on appeal, show that he filed such an affidavit. McCray's failure to comply with statutory requirements for suits filed by pauper inmates means that the trial court did not abuse its discretion by dismissing his suit.
Having found a basis on which the trial court did not abuse its discretion by granting the motion to dismiss, we need not consider the other bases.
We affirm the judgment.
J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed: October 14, 1999
Do Not Publish
SeeTex. Fam. Code Ann. §§ 261.201 & 261.402 (West 1996 and West Supp. 1999). He further asserted that these records are otherwise confidential. He finally noted that government agencies cannot suspend, terminate, or discriminate against a public employee who in good faith reports a violation of the law to an appropriate law enforcement authority. See Tex. Govt. Code Ann § 554.002 (West Supp. 1999). McCray requested a temporary injunction (but did not discuss what behavior he wanted enjoined), $2,000 in actual damages, $2,000 in punitive damages, costs, and attorney's fees.
Hine and Hable moved to dismiss on grounds that McCray failed to comply with statutes governing litigation by pauper inmates. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004-.006 (West Supp. 1999). They complained that McCray did not file the affidavit required of pauper inmates regarding previous litigation and its outcome. Id. § 14.004. They also complained that he did not file an affidavit stating the date that the prison system denied his grievance. Id. § 14.005. They finally complained that he failed to file a certified copy of his trust account statement showing his account balance and account activity for the six months preceding the filing of the suit. Id. § 14.006.
McCray objected to the motion to dismiss, complaining that appellees incorrectly accused him of lying. He also asserted that he did not have to follow the grievance procedure and that appellees filed the motion to dismiss to enable DPRS to conceal papers from the court.
The trial court granted the motion to dismiss without specifying a basis.
Under procedures for reviewing litigation by pauper inmates, we can reverse the dismissal of the trial-court judgment only if the court abused its discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no pet.). We must determine, not whether we would have decided the way the trial court did, but whether the court acted without reference to any guiding principles or acted arbitrarily or unreasonably. Id.
The trial court's dismissal of the action despite McCray's objections does not reveal an abuse of discretion. Contrary to McCray's assertion, we find no allegation of perjury in the motion to dismiss. Appellees' motive in filing the motion to dismiss is irrelevant to determination of whether the motion is meritorious. McCray, ho