Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 156th District Court of Bee County, Texas.
Justices Benavides, Hinojosa, and Perkes
LETICIA HINOJOSA, JUSTICE
an inmate litigation case brought under Chapter 14 of the
Texas Civil Practices and Remedies Code. By two issues,
appellant Michael McCann asserts: (1) the trial court erred
when it dismissed his chapter 14 civil lawsuit and (2) it was
error to allow an associate judge to preside over his case.
is an inmate at the Texas Department of Criminal Justice
(TDCJ) McConnell Unit in Beeville, Texas. He claims that on
November 27, 2017, TDCJ employee Jesus De Hoyos unlawfully
seized some of his legal documents while he was exiting the
unit's garment factory. McCann claims that De Hoyos read
his personal legal papers and refused to return them. McCann
also complains that TDCJ employees Corey Furr and C. Perales
assisted De Hoyos by failing to return his paperwork.
According to McCann, the employees retaliated against him by
filing a disciplinary case against him after he complained
about De Hoyos to De Hoyos's supervisor.
exhausting his administrative remedies, McCann filed a
lawsuit in district court against De Hoyos, Furr, and Perales
"in their official and personal capacities" on
April 30, 2018. McCann's lawsuit alleged breach of
contract, theft, conversion, and retaliation causes of
action. He also asserted that defendants' actions
violated the Equal Protection Clause. In his petition, McCann
objected "to the referral of this case to any judge not
elected to the district filed in." He sought recovery in
the form of damages, declaratory relief, injunctive relief,
and court costs.
Fourth Administrative Judicial Region assigned Judge Joel
Johnson to preside over this case on May 3, 2018. McCann then
filed a formal "Objection to Assigned Judge" under
§ 74.053 of the Texas Government Code. Although this
motion's certificate of service was dated May 11, 2018,
it was not postmarked until May 31, 2018.
trial court dismissed McCann's lawsuit without prejudice
"as frivolous and for failure to comply with Chapter
14's" procedural requirements. McCann now appeals.
Chapter 14 Inmate Litigation
McCann's first issue, he contends that the trial court
abused its discretion by improperly dismissing his lawsuit.
Standard of Review and Applicable Law
generally review a trial court's dismissal of a claim
pursuant to Chapter 14 of the Texas Civil Practice and
Remedies code under an abuse of discretion standard.
Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.-San
Antonio 2009, pet. denied); see also Zavala v.
Salles, No. 13-18-00104-CV, 2018 WL 3386368, at *1 (Tex.
App.-Corpus Christi-Edinburg July 12, 2018, no pet.) (mem.
op.). The trial court abuses its discretion if it acts
arbitrarily, unreasonably, or without reference to any
guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.3d 238, 241-42 (Tex. 1985).
"The mere fact that a trial judge may decide a matter
within his discretionary authority in a different manner than
an appellate judge in a similar circumstance does not
demonstrate that an abuse of discretion has occurred."
Id. at 242.
court may dismiss an inmate's claim as frivolous or
malicious under Chapter 14 based on the following factors:
the claim's ultimate chance of success; whether the claim
has an arguable basis in law or fact; whether it is clear
that the party cannot prove facts in support of the claim; or
whether the claim is substantially similar to a previous
claim filed by the petitioner because it arises from the same
operative facts. See Tex. Civ. Prac. & Rem Code
Ann. § 14.003(a)(2), (b)(2); see also Zavala v.
Bustos, No. 13-17-00597-CV, 2018 WL 3764568, at *2 (Tex.
App.-Corpus Christi-Edinburg Aug. 9, 2018, pet. denied) (mem.
op.). "A claim has no arguable basis in law if it relies
upon an indisputably meritless legal theory."
Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex.
App.-Waco 2010, no pet.). Dismissal with ...