Opinion
No. 05-03-001405-CV
Opinion Filed July 29, 2004.
On Appeal from the 110st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-10509-E.
Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
MEMORANDUM OPINION
J.B. Stell Gaines Sr. appeals the order dismissing with prejudice his claims against appellees Nan Lollar, Catherine Gould, and Paul J. Johnson. We conclude the dispositive issue before us is clearly settled in law. Accordingly, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters in detail. We affirm the trial court's judgment.
Gaines pleaded guilty to charges of aggravated robbery and possession of a controlled substance; he was placed on probation for ten years. Subsequently, he was indicted for burglary, and the State successfully moved to revoke his probation. Appellees served as Gaines's court-appointed counsel in those proceedings. In this suit, Gaines — who remains incarcerated — sued appellees for legal malpractice. Along with his petition, Gaines filed an affidavit stating he did not have the money or security to pay fees in the case, and he filed a motion seeking permission to proceed in form pauperis. Gould moved to dismiss Gaines's claims, alleging his suit: (1) failed to comply with the provisions of chapter 14 of the Texas Civil Practice and Remedies Code (the "Code") governing inmate litigation; (2) was based on a frivolous claim; and (3) was barred by the statute of limitations. The trial court granted the motion and dismissed Gaines's claims against appellees with prejudice. The order specified no particular ground for the court's decision. Gaines appealed.
See Tex. Civ. Prac. Rem. Code Ann. §§ 14.01 et seq. (Vernon 2002).
Gaines purports to raise some eleven issues and three points of error in his brief before this Court. The issues and points are multifarious, and many are inadequately briefed or not briefed at all. Gaines devotes a great deal of argument to the question of his "actual innocence" of the original criminal charges, primarily through attacks on the validity of the criminal statutes under which he was convicted. One point addresses the plea to the jurisdiction filed by the dismissed-defendant, the City of Dallas. Gaines also complains of the trial court's failure to rule on his several requests for default judgments. And in his reply brief, Gaines argues that all of appellee Gould's defensive arguments to his claims are waived by her failure to respond to his requests for admissions.
Gaines argues that the criminal statutes — and chapter 14's provisions — do not exist as enforceable laws of the State of Texas because after 1981, no statutory enactments have been properly authenticated by the secretary of state as the Texas Constitution requires. We reject this argument. See Murphy v. State, 95 S.W.3d 317, 321 (Tex. App.-Houston [1st Dist] 2002, pet. ref'd); Kent v. State, 982 S.W.2d 639, 640 (Tex. App.-Amarillo 1998, pet. ref'd).
The City is not before this Court. The trial court separately dismissed Gaines's claims against the City without prejudice based on the City's plea to the jurisdiction, and Gaines did not appeal that dismissal.
The record does not contain all requisites of a default judgment. However, we conclude that if there were any error in the trial court's handling of this issue, that error would have been harmless. As we discuss infra, Gaines's malpractice claim was not viable as a matter of law.
The record contains no request for admissions. Moreover, once Gould's motion to dismiss was filed, discovery was suspended pending the hearing on the motion. See Tex. Civ. Prac. Rem. Code § 14.003(d). Accordingly no issue of deemed admissions can arise in this case.
We have carefully reviewed all of Gaines's many complaints. We conclude the trial court properly dismissed Gaines's malpractice claims based on the second ground of appellees' motion: the claims were frivolous within the meaning of the Code. Under Texas law, whenever an inmate brings a suit and files an affidavit of inability to pay costs, that suit is governed by chapter 14 of the Code. Tex. Civ. Prac. Rem. Code § 14.002(a). The trial court may dismiss the inmate's claim if the court finds that the claim is frivolous or malicious. Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the court may consider whether the claim has no arguable basis in law or in fact. Id. § 14.003(b)(2). We review the trial court's dismissal of a suit under this provision for abuse of discretion. Barnum v. Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284, 286 (Tex. App.-Dallas 1999, pet. denied).
The single exception to this rule is for a suit brought pursuant to the Texas Family Code. See id. § 14.002(b). Accordingly, we reject Gaines's argument that his suit was not brought pursuant to chapter 14.
Regardless of the theory under which it is pleaded, a malpractice claim must establish a causal connection between the attorney's breach of duty and the plaintiff's injuries. See, e.g., Peeler v. Hughes Luce, 909 S.W.2d 494, 498 (Tex. 1995). "[A]s a matter of law, it is the illegal conduct rather than the negligence of a convict's counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned." Id. Thus, the sole legal cause of Gaines's conviction and damages is his own illegal conduct, unless his conviction has been overturned and he has been exonerated. See id.; see also Barnum, 998 S.W.2d at 286. The record in this case contains no evidence that Gaines's conviction has been overturned. Accordingly, Gaines was barred from bringing legal malpractice claims related to that conviction. See Peeler, 909 at 497-98 ("[P]laintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise."); see also Barnum, 998 S.W.2d at 286 (plaintiff barred from bringing malpractice claim where no evidence his conviction had been overturned).
We conclude the trial court did not abuse its discretion in dismissing Gaines's legal malpractice claims as frivolous. We affirm the order of the trial court.