Gordon R. Simmonds v. Norma A. Harrison

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Opinion filed January 6, 2011




                                          In The


   Eleventh Court of Appeals
                                        __________

                                   No. 11-09-00359-CV
                                       __________

                        GORDON R. SIMMONDS, Appellant

                                              V.

                          NORMA A. HARRISON, Appellee


                          On Appeal from the 259th District Court

                                     Jones County, Texas

                                Trial Court Cause No. 021973


                           MEMORANDUM                OPINION
       Gordon R. Simmonds sued Norma A. Harrison in her official capacity as a mailroom
administrative assistant at the French Robertson Unit of the Texas Department of Criminal
Justice – Institutional Division. Simmonds alleged that Harrison denied him access to a package
because money was due. Simmonds sought $612.20 for actual damages plus damages for mental
suffering and emotional distress as well as exemplary, punitive, and treble damages. The trial
court granted Harrison’s motion to dismiss, finding that Simmonds failed to comply with the
requirements of TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (Vernon 2002) and that
Simmonds’s claims were frivolous. We affirm.
        On appeal, Simmonds contends that the trial court erred by dismissing without holding a
hearing and before he had filed a response to the motion to dismiss, by not amending its
judgment and reinstating his case, and by holding that his claims were frivolous. Simmonds also
argues that the district clerk failed to perform a ministerial duty in preparing the clerk’s record.
        Section 14.008 provides that the trial court may hold a hearing but does not require that
one be held and does not require that a response be filed before the trial court dismisses the
action. The clerk’s record and the supplemental clerk’s records filed in this court contain the
documents required under TEX. R. APP. P. 34.5. This record does not support Simmonds’s
claims that the trial court abused its discretion in dismissing his case. Moreover, we note that
Simmonds’s petition does not state a nonfrivolous cause of action.
        All of Simmonds’s arguments have been considered, and each is overruled. The order of
the trial court is affirmed.




                                                               PER CURIAM


January 6, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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