Summary
affirming trial court's dismissal as frivolous of Long's suit against district attorney alleging fraud, prosecutorial misconduct, concealment of the truth, tampering with evidence, and withholding of favorable evidence
Summary of this case from In re LongOpinion
No. 10-04-00161-CV
Opinion Delivered and Filed July 20, 2005.
Appeal from the 13th District Court, Navarro County, Texas, Trial Court No. 04-00-13525-CV.
Affirmed as modified.
Carl Long, Pro Se for appellant.
Steve A. Keathley, Navarro County District Attorney for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY dissenting)
MEMORANDUM OPINION
After this Court affirmed Carl Long's conviction for manufacturing methamphetamine, Long filed suit against District Attorney Patrick C. Batchelor alleging fraud, prosecutorial misconduct, concealment of the truth, tampering with evidence, and withholding of favorable evidence. The trial court dismissed Long's suit as frivolous. Long presents seven issues challenging the dismissal. We will modify the judgment to delete the provision that the dismissal is "with prejudice" and affirm the judgment as modified.
See Long v. State, 137 S.W.3d 726 (Tex.App.-Waco 2004, pet. ref'd).
Long contends in his first issue that the court erred by dismissing his suit. He contends in his third issue that the court erred by finding that his petition does not allege all the elements necessary to state a fraud claim. He contends in his fourth issue that the court erred by dismissing his suit with prejudice. Because these issues are dispositive, we do not reach the remainder of his issues.
Long's first issue states, "The trial court's dismissal order is false. He says the pleadings attempt to revisit issues that . . . were either raised and disposed of or could of [sic] been raised at trial or on direct appeal."
Long's remaining issues concern various aspects of the manner in which his prosecution was conducted.
Long's suit is governed by Chapter 14 of the Civil Practice and Remedies Code. Under section 14.003(a), a trial court may dismiss an inmate's suit if the court finds that claims asserted therein are "frivolous or malicious." TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2) (Vernon 2002). A claim is frivolous if it "has no arguable basis in law or in fact." Id. § 14.003(b)(2) (Vernon 2002).
Because the court determined without a hearing that Long's claims are frivolous, our review is limited to the issue of whether the claims have any arguable basis in law. See Retzlaff v. Tex. Dept. of Crim. Just., 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Smith v. Tex. Dept. of Crim. Just., 33 S.W.3d 338, 340 (Tex.App.-Texarkana 2000, pet. denied). We review this issue de novo. Retzlaff, 94 S.W.3d at 653; Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.-Texarkana 2001, pet. denied).
Long contends in his third issue that the court erred by finding that his petition does not allege all the elements necessary to state a fraud claim.
The elements of a cause of action for fraud are: "(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury."
Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 211 n. 45 (Tex. 2002) (quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (orig. proceeding)).
Long does not allege that Batchelor made any representations to him and does not allege that he relied on any representations Batchelor made. Thus, his petition does not state an arguable claim for fraud. Accordingly, we overrule his third issue.
Long's other claims allege that Batchelor engaged in prosecutorial misconduct, concealed the truth, tampered with evidence, and withheld favorable evidence. However, Texas does not recognize private causes of action for these types of claims. See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998); see also Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.) ("the Texas Penal Code does not create private causes of action"); A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same). Thus, we hold as a matter of law that Long has not alleged arguable claims for prosecutorial misconduct, concealment of the truth, tampering with evidence, and withholding of favorable evidence.
Because Long did not allege any claims with an arguable basis in law, the court did not err by dismissing his suit. Thus, we overrule Long's first issue.
Long contends in his fourth issue that the court erred by dismissing his suit with prejudice. It is error to dismiss an inmate's suit with prejudice if the inmate has not been given an opportunity to amend his pleadings. See Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 273-74 (Tex.App.-Texarkana 2003, no pet.); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001, no pet.); Thompson v. Tex. Dept. of Crim. Just., 33 S.W.3d 412, 415 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). Long was not given an opportunity to amend his pleadings. Accordingly, we sustain his fourth issue.
We modify the judgment to delete the provision of the judgment that Long's suit is dismissed "with prejudice against refiling the same" and affirm the judgment as modified.
DISSENTING OPINION
The majority reverses the trial court on an unpreserved issue. I would not.
Rule 33.1(a) requires that the record show that the complaint was made to the trial court and an adverse ruling obtained. Long failed to preserve the issue of whether it was improper to dismiss his case with prejudice. Thus, he forfeited his right to make this complaint on appeal.
Further, try as I might to make them, the majority fails to acknowledge the difference between a trial court properly reviewing the merits of the case and dismissing it with prejudice as opposed to reviewing the compliance with the procedural requirements of Chapter 14 and dismissing the case without prejudice for lack of compliance. Johns v. Johnson, No. 10-03-00388-CV, 2005 Tex. App. LEXIS 1500, * 12-14 (Tex.App.-Waco, February 23, 2005, no pet.) (Gray, C.J., dissenting).
This case was not dismissed by the trial court because of the lack of compliance with Chapter 14; it was dismissed on the merits. By dismissing this case without prejudice, we frustrate the purpose of the statute, and that is frustrating to me. How many do-loops do the trial court and this Court go through before we have had enough?
I would affirm the trial court's judgment dismissing the case with prejudice; because the majority does not, I dissent.