Nabelek v. District Atty. of Harris County

• Decision Date: 08 September 2005
• Docket Number: No. 14-03-00965-CV.,14-03-00965-CV.
• Citation: 290 S.W.3d 222
• Parties: Ivo NABELEK, Appellant, v. DISTRICT ATTORNEY OF HARRIS COUNTY, Texas, Appellee.
• Court: Texas Court of Appeals

290 S.W.3d 222

Ivo NABELEK, Appellant, v. DISTRICT ATTORNEY OF HARRIS COUNTY, Texas, Appellee.

No. 14-03-00965-CV.

Court of Appeals of Texas, Houston (14th Dist.).

September 8, 2005.

Dissenting Opinion on Rehearing November 30, 2006.

Ivo Nabelek, pro se.

Scott A. Durfee, Dist. Atty's Office, Houston, for District Attorney of Harris County.

Michelle Traher, for Charles Bacarisse.

Panel consists of Justices ANDERSON, HUDSON, and FROST.

MAJORITY OPINION

JOHN S. ANDERSON, Justice.

Appellant, Ivo Nabelek, appeals the dismissal of his suit against appellee, the District Attorney of Harris County, Texas. In his suit, Nabelek, an inmate at a state correctional facility proceeding pro se and in forma pauperis, sought declaratory and injunctive relief to determine the validity and constitutionality of section 552.028 of the Texas Open Records Act. TEX. GOV'T CODE ANN. § 552.028 (Vernon 2004). The trial court dismissed Nabelek's suit as frivolous pursuant to Texas Civil Practice and Remedies Code section 14.003(a)(2). TEX. CIV. PRAC. & REM.CODE ANN. § 14.003(a)(2) (Vernon 2002). Nabelek raises five issues on appeal. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On June 14, 1995, Nabelek sent a letter to the District Attorney of Harris County (the "DAHC") requesting copies "of the entire records and all exhibits including the complete transcripts and everything pertaining to the trial of Texas State [sic] v. Ivo Nabelek, Case No. 657516 and case No. 657528"¹ pursuant to the Texas Open Records Act.² On June 28, 1995, the DAHC responded to Nabelek's letter, denying Nabelek's request, citing section 552.027 of the Texas Government Code. See Act effective June 5, 1995, 74th Leg., R.S., ch. 302, § 1, 1995 Tex. Gen. Laws 2670, 2670 (amended 2003) (current version at TEX. GOV'T CODE ANN. § 552.028 (Vernon 2004)). The version of section 552.027 in effect at that time granted governmental bodies such as the DAHC the discretion whether to comply with a request for information from an incarcerated individual. Section 552.027 provided as follows:

Sec. 552.027. REQUEST FOR INFORMATION FROM INCARCERATED INDIVIDUAL

(a) A governmental body is not required to accept or comply with a request for information from an individual who is imprisoned or confined in a correctional facility.

(b) Subsection (a) does not prohibit a governmental body from disclosing to an individual described by that subsection information held by the governmental body pertaining to that individual.

(c) In this section, "correctional facility" has the meaning assigned by Section 1.07(a), Penal Code.

Id.

In 1996 and 2000, Nabelek sent correspondence to the DAHC specifically inquiring about the whereabouts of certain personal property seized from him by the Houston Police Department when he was arrested in 1993. Nabelek's 1996 and 2000 correspondence did not reference the Texas Open Records Act. The DAHC responded to Nabelek's correspondence, informing Nabelek that it did not have any items in its possession that did not relate to the prosecution of his cases and it had no knowledge of the whereabouts of his personal property. Unlike its response to the 1995 request for information, the DAHC did not deny Nabelek's 1996 and 2000 inquiries about the whereabouts of his personal property pursuant to section 552.027 or 552.028.³

In July 2001, Nabelek filed this suit against the DAHC seeking declaratory and injunctive relief to determine the constitutionality of section 552.028 as applied to the DAHC's denial of his access to information. In his petition, Nabelek alleged the DAHC wrongfully denied him access to information in its possession under the Texas Open Records Act. Nabelek argued he was acting as his own attorney when he requested the information from the DAHC and his status as a pro se litigant entitled him to the information he sought.⁴

The DAHC filed a motion for summary judgment and a motion to dismiss Nabelek's suit as frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code based on the following two grounds: (1) Nabelek failed to file an affidavit or unsworn declaration as required by Texas Civil Practice and Remedies Code section 14.004, requiring dismissal of his claims; and (2) Nabelek's claims against the DAHC are frivolous because there is no arguable basis in law to support his claims. Nabelek filed a response to the DAHC's motions and a cross-motion for summary judgment.

An "order setting hearings," dated August 29, 2002, notified the parties the pending motions, including the DAHC's motions and eight of Nabelek's motions, were set for a hearing on September 13, 2002, and, pursuant to its order, the trial court held a telephonic hearing on September 13, 2002. On October 18, 2002, the trial court dismissed Nabelek's claims as frivolous as follows:

ORDER DISMISSING CASE

On September 13, 2002 the Court heard [the DAHC]'s Motion to Dismiss Frivolous Action and Motion for Summary Judgment. At the hearing the Court heard and considered the pleadings and arguments of [Nabelek] (who participated in the hearing without counsel) and counsel for [the DAHC]. The Court's file indicates that through the date of this Order [Nabelek] has never been represented by an attorney of record in this case. [Nabelek] stated at the commencement of the hearing that he did not have counsel representing him in the case or in connection with the hearing, and that he was ready to proceed with the hearing without counsel. The Court orders as follows in connection with the Motions.

It is Ordered that the claims of [Nabelek] in this case are dismissed under Sec[t]ion 14.003(a)(2) of the Texas Civil Practice and Remedies Code as frivolous claims.

On appeal, Nabelek raises five issues, arguing the trial court erred in: (1) not having a stenographic or other recording made of the September 13, 2002 telephonic hearing; (2) not ruling on Nabelek's pending motions; (3) dismissing Nabelek's claims as frivolous under Texas Civil Practice and Remedies Code section 14.003(a)(2) for non-compliance with Texas Civil Practice and Remedies Code section 14.004; (4) not specifying whether the dismissal of Nabelek's claims was with or without prejudice; and (5) dismissing Nabelek's claims as frivolous under Texas Civil Practice and Remedies Code section 14.003(a)(2) for lack of arguable basis in law.

DISCUSSION

I. The Trial Court's Dismissal of Nabelek's Suit Under Section 14.003(a)(2)

In issues three and five, Nabelek argues the trial court erred in dismissing his claims as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code.

A. Section 14.003(a)(2)

The dismissal of lawsuits brought by inmates who file affidavits of inability to pay is governed by chapter 14 of the Texas Civil Practice and Remedies Code, entitled "Inmate Litigation." See TEX. CIV. PRAC. & REM.CODE ANN. §§ 14.001-14.014 (Vernon 2002). Section 14.003(a)(2) specifically allows a trial court to dismiss an inmate's claim as frivolous, before or after service of process, if it finds "(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." Id. at § 14.003(a)(2), (b). The trial court may hold a hearing when dismissing a case under section 14.003(a), and a hearing may be held before or after service of process. Id. at § 14.003(c); see also id. at § 14.008 (discussing manners by which trial court may hold a hearing under Chapter 14).

A trial court has broad discretion to dismiss an inmate's suit as frivolous. See Retzlaff v. Texas Dept. of Criminal Justice, 94 S.W.3d 650, 654 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Trial courts are given broad discretion under section 14.003 because: "(1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants." Id. at 653.

Our review of whether a claim is legally cognizable is de novo. Id. For a claim to have no arguable basis in law, it must be based on "an indisputably meritless legal theory," or be based on wholly incredible or irrational factual allegations. Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.-Texarkana 2001, pet. denied) (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)). An inmate's cause of action may not be dismissed merely because the court considers the allegations "unlikely." Id. at 603-04 (quoting Denton, 504 U.S. at 33, 112 S.Ct. 1728).

B. Dismissal of Nabelek's Claims Under Section 14.003(a)(2)

In its motion to dismiss and motion for summary judgment, the DAHC asserted two grounds for dismissal of Nabelek's claims. First, the DAHC argued Nabelek failed to comply with section 14.004 by not filing a declaration or affidavit identifying previous litigation. Second, the DAHC argued Nabelek's suit was frivolous and had no arguable basis in law for three reasons: (1) limitations barred Nabelek's claims; (2) Nabelek's interpretation of section 522.028(a)'s attorney exception had no arguable basis in law; and (3) no arguable constitutional claim was stated. After holding a telephonic hearing, the trial court dismissed Nabelek's claims under section 14.003(a)(2) as frivolous.⁵

Nabelek argues that as a pro se litigant, he is his own attorney of record. As such, Nabelek contends that when he requested information from the DAHC, the DAHC was required to comply with his requests for information under Texas Government Code section 552.028(a)(2), which currently provides as follows:

A governmental...