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Boyd v. Jones

Court of Appeals of Texas, Seventh District, Amarillo

May 17, 2019

STEVEN BOYD, APPELLANT
v.
COREY DUSTIN JONES AND ROBERT LOVE III, APPELLEES

          On Appeal from the 47th District Court Randall County, Texas Trial Court No. 73, 319-A; Honorable David L. Gleason, Presiding by Assignment

          Before CAMPBELL, PIRTLE, and PARKER, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         Steven Boyd, an inmate proceeding pro se and in forma pauperis, appeals the trial court's Order Dismissing "Due Course of Law Complaint" he filed against Robert Love III and Corey Dustin Jones. By three issues, he contends (1) the trial court abused its discretion in dismissing his complaint for failing to appropriately state a cause of action; and that the trial court erred in (2) finding that his claim's realistic chance of success was slight, had no arguable basis in law, and that Boyd could not prove facts in support of his claim; and (3) dismissing his suit because the requested admissions were deemed admitted. We affirm.

         Background

         On January 17, 2018, Boyd sued Love, a Randall County prosecutor, and Jones, an Amarillo police officer, for allegedly conspiring to deprive him of his due process rights in a robbery prosecution in trial court cause number 24, 143-A. By his "Due Course of Law Complaint," Boyd alleged that Jones "fabricated and distributed a false confession to prosecutors" and that Love "allow[ed] it to go uncorrected." He claims Appellees' actions violated Article I, Sections 10 and 19 of the Texas Constitution as well as the Fifth and Fourteenth Amendments to the United States Constitution.

         Simultaneously with his complaint, Boyd filed a discovery request pursuant to Rule 190.3 of the Texas Rules of Civil Procedure and a request for admissions under Rule 198.1. Tex.R.Civ.P. 190.3, 198.1. Several months later, the trial court dismissed Boyd's suit pursuant to section 14.003(b) of the Texas Civil Practice and Remedies Code. Boyd now challenges that dismissal.

         We further note that, although the clerk's record contains two "citation" requests for Appellees, there is nothing to indicate they were ever served. Boyd filed a document entitled "Tex. R. App. Proc. Rule 2 Motion to Suspend Tex. R. Civ. Proc. Rule 21(A) and Tex. R. App. Proc. Rule 9.3," by which he requested suspension of the rules requiring service of process.[1] Rule 2 of the Texas Rules of Appellate Procedure allows this court to suspend the operation of appellate rules except in two instances not relevant here. Tex.R.App.P. 2. Rule 2 does not apply to suspend the operation of the Texas Rules of Civil Procedure and, generally, there must be valid service of process on the defendant for a plaintiff to invoke the trial court's jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). A defendant may, however, waive the issuance and service of process by appearing and voluntarily submitting to the jurisdiction of the trial court. Houston Crushed Concrete v. Concrete Recycling Corp., 879 S.W.2d 258, 260 (Tex. App.-Houston [14th Dist.] 1994, no writ). For the purpose of this proceeding, we will assume without deciding, that Love and Jones were subject to the jurisdiction of the trial court.

         Applicable Law

         The statutory scheme for indigent inmate litigation is governed by chapter 14 of the Texas Civil Practice and Remedies Code. §§ 14.001 - 14.014 (West 2017). Dismissal of a suit is authorized under chapter 14 on a finding that the action is frivolous or malicious. § 14.003(a)(2). A trial court may consider whether a suit has an arguable basis in law or in fact when making the determination whether the suit is frivolous or malicious. § 14.003(b)(2); Lagaite v. Boland, 300 S.W.3d 911, 913 (Tex. App.-Amarillo 2009, no pet.).

         In determining whether a claim is frivolous or malicious, the trial 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 ...

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