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Geiger v. Landes1/31/2002
APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT OF ANDERSON COUNTY, TEXAS
Inmate Michael Eugene Geiger ("Geiger") filed a pro se in forma pauperis civil suit against Barbara Landes ("Landes"), an attorney employed by the State Counsel for Offenders, a division of the Texas Department of Criminal Justice pursuant to Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq., commonly known as the Texas Tort Claims Act ("the Act"). Geiger sued for damages resulting from Landes' failure to adequately represent him. He also requested damages pursuant to 42 U.S.C.A. § 1983 (1994) for violation of the United States Constitution and Texas Penal Code §§ 39.02(A)(1) and 39.03(A)(1)(2). The trial court dismissed as frivolous all claims against Landes sua sponte. In two issues, Geiger complains that the trial court erred when it dismissed his suit. We affirm.
Background
In his petition, Geiger alleged that he was indicted for an assault against a prison guard, for which Landes was appointed to represent him. Geiger complained that Landes did not represent him in a professional manner, only interviewed him twice in a three year period, failed to respond to his written complaints, did not comply with his requests for documents, did not pursue a speedy trial motion, and withdrew as counsel one week before his arraignment. Geiger asserts that these actions were taken because of Landes' racism and religious discrimination. Upon its own motion, the trial court dismissed Geiger's claims as frivolous or malicious pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon Supp. 2002). This appeal followed.
Standard of Review
Dismissal Of Causes As Frivolous
In his two issues, Geiger complains that the trial court abused its discretion when, on its own motion and without a hearing, it dismissed his suit against Landes because it found that the claims against her were frivolous or malicious. When a plaintiff files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon Supp.2002); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App.-Houston [1st Dist.] 1994, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Aguilar v. Chastain, 923 S.W.2d 740, 743 (Tex. App.-Tyler 1996, writ denied).
In determining whether an action is frivolous or malicious, the statute allows the trial court to 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 Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon Supp. 2002).
Case law requires that we only consider the second factor - whether there is an arguable basis in law or fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990). When, as here, the trial court dismisses without a fact hearing, it could not have determined the suit had no arguable basis in fact. Hector v. Thaler, 862 S.W.2d 176, 178 (Tex. App.-Houston [1st Dist.] 1993, no writ). Thus, the issue before us is whether the trial court properly determined there was no arguable basis in law for the suit. Id. In order to make this determination, we will examine the types of relief and causes of action Geiger pleaded in his petition to ascertain whether, as a matter of law, the petition stated a cause of action that would authorize relief.
Texas Tort Claims Act
As stated in his petition, Geiger b
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