Sweed v. City of El Paso

McCLURE, Justice, concurring.

Because Sweed is an inmate who filed an unsworn declaration of inability to pay costs, his suit is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex.Civ.PRAc. & Rbm.Code Ann. § 14.002(a)(Vernon 2002). Nevertheless, the trial court dismissed the instant case, not under any of the provisions found in Chapter 14, but pursuant to Rule 165a for want of prosecution. While the majority opinion professes to limit its consideration to the requirements of that rule, it faults the trial court for not granting Sweed’s request to appear at the dismissal hearing via videoconferencing technology under Section 14.008 of the Texas Civil Practice and Remedies Code. While I concur in the majority’s conclusion that the trial court erred in dismissing this case pursuant to Rule 165a, I do not agree that Section 14.008 is mandatory as suggested by the majority opinion or that it even applies under the circumstances of this case.

With the exception of suits brought under the Family Code, inmate litigation in which the inmate files an affidavit or un-sworn declaration of inability to pay costs is governed by special procedural rules set out in Chapter 14 of the Civil Practice and Remedies Code. See Tex.Civ.Prac. & Rem. Code Ann. § 14.002 (Vernon 2002); Jackson v. Texas Department of Criminal Justice-Institutional Division, 28 S.W.3d 811, 812-13 (Tex.App.-Corpus Christi 2000, pet. denied). The Legislature enacted Chapter 14 to control the flood of frivolous suits being filed in Texas courts by prison inmates, as these suits consume valuable judicial resources with little offsetting benefit. Jackson, 28 S.W.3d at 813. Under this chapter, a trial court has broad discretion to dismiss a claim, either before or after service of process, if the court finds that (1) the allegation of poverty in the affidavit or unsworn declaration is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false.1 Tex.Civ.PRAC. & Rem.Code Ann. § 14.003(a)(Vernon 2002); see Jackson, 28 S.W.3d at 813. 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). In making such a determination, the trial court may hold a *454hearing, and that hearing may be held before or after service of process and on the motion of the court, a party, or the court clerk. Tex. Civ. PRAC. & Rem.Code Ann. § 14.003(c)(Vernon 2002).

Section 14.008, the statute relied on by the majority opinion, provides as follows:

(a) The court may hold a hearing under this chapter at a jail or a facility operated by or under contract with the department or may conduct the hearing with video communications technology that permits the court to see and hear the inmate and that permits the inmate to see and hear the court and any other witness.
(b) A hearing conducted under this section by video communications technology shall be recorded on videotape. The recording is sufficient to serve as a permanent record of the hearing.

Tex.Civ.Prac. & Rem.Code Ann. § 14.008 (Vernon 2002).

Section 14.009 permits the trial court to request a person with an admissible document or admissible testimony relevant to the subject matter of the hearing to submit a copy of the document or written statement stating the substance of the testimony. Tex.Civ.Prac. & Rem.Code Ann. § 14.009(a)(Vernon 2002). Finally, Section 14.010 permits the trial court to dismiss the entire claim or a portion of it under Chapter 14. Tex.Civ.Prac. & Rem.Code Ann. § 14.010(a)(Vernon 2002). Therefore, under Chapter 14, the trial court has statutory authority to hold a dismissal hearing pursuant to Section 14.003, with or without notice to the inmate, with or without the submission of evidence, and with or without the inmate’s requested presence via video teleconference. Brewer v. Myrtle Cove Apartments, No. 05-01-01045-CV, 2002 WL 1767218 (Tex.App.-Dallas August 1, 2002, no pet.)(not designated for publication).

Here, the City of El Paso filed a motion to dismiss pursuant to Section 14.003 alleging not only that Sweed’s suit was frivolous and malicious but also that the declaration he filed pursuant to Section 14.004 was false since he had not identified all of his prior suits. Attached to the City’s motion is evidence which tends to show that Sweed had previously litigated the same issues raised in the instant case2 and he had failed to identify not only that suit but also numerous other suits previously filed in the courts of El Paso County. For unknown reasons, the trial court did not hold a hearing under Section 14.003 or act on the City’s motion to dismiss. Instead, the court sent out a notice of its intention to dismiss the case for want of prosecution pursuant to Rule 165a. The trial court ordered Sweed to appear at the mandatory July 23, 2003 dismissal hearing and then dismissed the case on August 13, 2003 when Sweed did not appear.

This case is plainly governed by Chapter 14 of the Civil Practice and Remedies Code. The trial court was not required to honor Sweed’s request to appear at any hearing, including a Section 14.003 dismissal hearing, held under that chapter. See Brewer, 2002 WL 1767218, at *2-3 (holding that trial court was not required to grant inmate’s request made pursuant to Section 14.008 to attend dismissal hearing). However, the trial court did not hold a hearing under Chapter 14 but instead held a dismissal hearing pursuant to Rule 165a. Therefore, Section 14.008 is inapplicable. Nevertheless, it is fundamentally unfair to order Sweed to appear *455at a mandatory dismissal hearing, ignore his request to appear at the hearing either telephonically or by videoconference technology, and then dismiss his case for the sole reason that he failed to appear at the mandatory hearing.

Accordingly, I concur with the majority opinion’s conclusion that the trial court’s dismissal order must be reversed and remanded to the trial court for further proceedings.

ANN CRAWFORD McCLURE, Justice.

. The inmate is required to file an affidavit or declaration both identifying and describing each suit previously brought by the inmate and stating the result of the suit. Tex.Civ.Prac. & Rem.Code Ann. § 14.004(Vernon 2002).

. That case concluded when this Court affirmed the judgment of the trial court on November 20, 2001. See Sweed v. City of El Paso, No. 08-00-00195-CV, 2001 WL 1469071 (Tex.App.-El Paso November 20, 2001, pet.denied).