IN THE
TENTH COURT OF APPEALS
No. 10-08-00329-CV
No. 10-08-00354-CV
margaret meece, patrick meece,
and margaret hiebeler,
Appellants
v.
occ construction corporation
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 03-001642-CV-361
Consolidated with No. 03-001643-CV-361
ORDER
The original appellants in cause number 10-08-00329-CV are Margaret Meece, Patrick Meece, and Margaret Hiebeler. The Meeces filed a Suggestion of Bankruptcy advising this Court that they had filed a voluntary bankruptcy petition on September 3, 2008. Accordingly, cause number 10-08-00329-CV was suspended because of the automatic bankruptcy stay. See Tex. R. App. P. 8.2; 11 U.S.C.A. § 362(a).
Because the stay was effective only as to the Meeces, the remaining appellant, Margaret Hiebeler, could not benefit from the Meeces’ bankruptcy stay. Accordingly, we severed the appeals of the Meeces from the remainder of the appeal of Hiebeler in an October 15, 2008 Severance and Reinstatement Order, and the Clerk docketed the Meeces’ appeal under cause number 10-08-00354-CV, styled Margaret Meece and Patrick Meece v. OCC Construction Corporation. In a memorandum opinion, for administrative purposes, we suspended cause number 10-08-00354-CV and closed it subject to reinstatement on proper motion.
Our October 15, 2008 order also reinstated cause number 10-08-00329-CV, and the Clerk of this Court re-styled it as Margaret Hiebeler v. OCC Construction Corporation.
The Meeces then filed a motion to reconsider our severance order, asserting that Hiebeler’s house was constructed on a portion of the Meeces’ homestead, which is part of their bankruptcy estate and that the Meeces’ claims against OCC, which are also part of their bankruptcy estate, include the real property that Hiebeler’s house is on. OCC responded to the Meeces’ motion, arguing that our severance was proper.
Because the trial court’s judgment and the documents attached to the Meeces’ motion to reconsider were unclear, we requested the Appellants to provide us with the two mechanic’s lien contracts on which the judgment provides for foreclosure. Both sides provided responsive documents, and Appellants further notified us that the court in the Meeces’ bankruptcy has lifted the automatic stay to allow the Meeces and Hiebeler to pursue their appeals and OCC to defend those appeals, except that the automatic stay remains in effect with respect to any action against the property.
Accordingly, we grant in part the motion to reconsider and (1) withdraw our October 15, 2008 Severance and Reinstatement Order; and (2) reinstate cause number 10-08-00329-CV as it was originally filed with Margaret Meece, Patrick Meece, and Margaret Hiebeler as Appellants. The Clerk of this Court shall re-style 10-08-00329-CV as Margaret Meece, Patrick Meece, and Margaret Hiebeler v. OCC Construction Corporation.
Cause number 10-08-00354-CV is administratively closed.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Motion to reconsider granted in part
Order issued and filed January 21, 2009
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dismissal of both causes.ANALYSIS
A trial court may dismiss a claim filed by an inmate if the court finds the allegation of poverty is false or the action is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. Sect. 14.003(a). Review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. A court abuses its discretion if it acts without reference to guiding rules or principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1939).
The trial court may dismiss an in forma pauperis suit when “the claim has no arguable basis in law or in fact”. Tex. Civ. Prac. & Rem. Code Ann. Sect. 14.003 (b) (Vernon’s Supp. 1998). A claim brought on an indisputably meritless legal theory has no arguable basis in law. Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). “An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit.” Id, (quoting Nietzke v. Williams, 490 U.S. 319, 327 (1989)).
A government official sued in his individual capacity is entitled to immunity from liability under the doctrine of “official immunity” if the official status or action can be classified as quasi-judicial. Wyse v. Department of Public Safety, 733 S.W.2d 224, 227 (Tex. App.--Waco, 1986, writ ref’d). A discretionary act may not form the basis for personal liability when the discretionary act is performed within the official scope of the employment and in good faith. Austin v. Hale, 711 S.W.2d 64 (Tex. App.--Waco 1986, no writ). Discretionary actions are those which require personal deliberation, decision, and judgment. Wyse at 227. When a state employee gathers facts and then acts, the actions are quasi-judicial. Austin at 66.
Decisions regarding disciplinary actions against inmates require the exercise of judgment and discretion. In writing up Hall on the disciplinary case, the officers had to use discretion to decide whether Hall violated a rule and whether to charge Hall with a violation. The hearing officers’ actions on the disciplinary cases of which Hall complains were quasi-judicial.
Hall states the defendants acted in bad faith. However, the mere assertion, absent any factual basis, that an official acted in bad faith is insufficient. Russell v. Department of Human Resources, 746 S.W.2d 510, 514 (Tex. App. Texarkana, 1988, writ denied). Hall made no showing of bad faith, and all actions complained of are discretionary. All officials are shielded from liability by official immunity.
(citing Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Furthermore, due process guarantees do not go so far as to provide for an inmate’s satisfaction with the results of a prison disciplinary and grievance proceeding. Stewart v. Thigpen, 730 F.2d 1002, 1005 (5th Cir. 1984).
. To recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Id. Hall did not allege the disciplinary case against him had been reversed, expunged, or called into question. Therefore, his claims were properly dismissed as frivolous. Johnson v. Lynaugh, 800 S.W.2d 936, 939 (Tex. App. Houston [14th Dist.] 1990, reh’g denied).
ROBERT M. CAMPBELL
Justice (Sitting by Assignment)
Before Chief Justice Davis,
Justice Vance and
Justice Campbell (Sitting by Assignment)
Affirmed
Opinion delivered and filed January 27, 1999
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