In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00007-CV
________________________
RICHARD JAMES JOHNSON, APPELLANT
V.
M. VENABLE, SGT., INDIVIDUAL CAPACITY, D. OWENS, CO5,
INDIVIDUAL CAPACITY, J. DRAPER, CO4, INDIVIDUAL CAPACITY,
F. MARTINEZ, CO5, INDIVIDUAL CAPACITY, M. MAES, SGT.,
INDIVIDUAL CAPACITY, PHD OVERFLOW PROCEDURE, W.P.
CLEMENTS PHD LEVELING PROCEDURE, W.P. CLEMENTS FOOD LOAF
PROCEDURE, TDCJ OFFICERS RICHARD ROE, ET AL., INDIVIDUAL CAPACITYS,
APPELLEES
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 101,022-E, Honorable Douglas Woodburn, Presiding
May 31, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Richard James Johnson (Johnson) appeals from an order dismissing his lawsuit.
Through five issues, Johnson contends that 1) the trial court erred by dismissing his suit
for failing to state a cause of action, and 2) a violation of the “’Texas Theft Liability Act,’”
due process violations and cruel and unusual punishment are all causes of action. We
reverse and remand.
Background
Johnson filed suit alleging that the named defendants had retaliated against him
for filing grievances. He further alleged personal property was taken from him that
either never was returned or returned damaged and useless. The trial court dismissed
his suit because of Johnson’s “failure to state a cause of action.” Johnson filed this
appeal, and the State did not favor us with a brief.
Analysis
Inmates in forma pauperis lawsuits are governed by Chapter 14 of the Texas
Civil Practice & Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 14.001-.014
(West 2002). The chapter provides several grounds on which a court may dismiss such
actions. See id. § 14.003. The ground mentioned by the trial court involved Johnson’s
purported failure to state a cause of action in his live pleading. That is, the trial court
viewed the suit as frivolous and lacked an arguable basis in the law. See id. §
14.003(a), (b); Retzlaff v. Tex. Dept. of Crim. J., 94 S.W.3d 650, 653 (Tex. App.–
Houston [14th Dist.] 2002, pet. denied) (stating that, if, without an evidentiary hearing, a
trial court dismisses a claim as frivolous under section 14.003 of the Texas Civil
Practice and Remedies Code, then the dismissal can be affirmed on appeal only if the
claim has no arguable basis in law). Furthermore, the ruling was made prior to service
of process and without conducting an evidentiary hearing.
For a claim to lack an arguable basis in law, it must involve “an indisputably
meritless legal theory,” or encompass wholly incredible or irrational factual allegations.
Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App.–Texarkana 2001, pet denied)
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(quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989), and citing Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 118 L.Ed.2d
340 (1992)). It is not enough for the trial court to merely consider the chances of the
plaintiff’s success as “unlikely.” Gill, 64 S.W.3d at 604 (quoting Denton, 504 U.S. at 33,
112 S.Ct. 1728). Also, the pertinent standard of review is de novo. Retzlaff, 94 S.W.3d
at 653. Finally, a pro se inmate's petition should be read with liberality and patience for
it is not held to the stringent standards applicable to writings crafted by attorneys.
Hughes v. Rowe, 449 U.S. 5, 9-10 & n.7, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Black v.
Jackson, 82 S.W.3d 44, 51 (Tex. App.–Tyler 2002, no pet.); Aguilar v. Stone, 68 S.W.3d
1, 1-2 (Tex. App.–Houston [1st Dist.] 1997, no pet.).
With the foregoing in mind, we note that one of Johnson’s causes of action
concerns the purported violation of the Theft Liability Act by several of the named
defendants. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.001 (West 2011) (the Texas
Theft Liability Act). According to the Act, “[a] person who commits theft is liable for the
damages resulting from the theft.” Id. § 134.003(a). It further details the damages
recoverable by the victim. Id. § 134.005.
Johnson alleged in his petition that defendants Draper and Martinez removed all
of his personal property from his cell, which property included a fan that was never
returned and a typewriter that was severely damaged. So too does he aver that
defendants Mitchell and Studer removed a radio with headphones, a hot pot and a book
from his cell, which items were never returned to him. Defendants Venable and Owens
also violated the Theft Liability Act by entering his cell and removing several photos,
magazines, gym shorts, set of dominos and checkers, toiletry items, food and other
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items without justification and failed to return them, according to Johnson. In construing
these allegations liberally, we conclude that they assert an arguable cause of action.
Minix v. Gonzales, 162 S.W.3d 635, 638 (Tex. App.–Houston [14th Dist.] 2005, no pet.)
(holding that the inmate pled a viable cause of action under the Theft Liability Act
against prison employees for taking property from his cell when the employees were
sued in their individual capacities). Therefore, the trial court erred in dismissing
Johnson’s suit in its entirety, and the error was harmful. See Garrett v. Borden, 202
S.W.3d 463, 465 (Tex. App.–Amarillo 2006, no pet.) (holding the error harmful because
it resulted in the dismissal of the suit). 1
Accordingly, the judgment is reversed and the cause remanded to the trial court.
Brian Quinn
Chief Justice
1
We do not address whether the trial court had any other basis upon which to dismiss the cause.
None were mentioned by the court. Nor do we suggest that Johnson should recover upon his claims.
We simply hold that he asserted at least one legally cognizable cause of action that effectively barred the
trial court from dismissing the suit in its entirety.
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