Opinion
No. 02-20-00039-CV
03-18-2021
DONALD W. READ, Appellant v. TDCJ POLICY, JOHN FLOYD, AND BRIAN COLLIER, Appellees
On Appeal from the 17th District Court Tarrant County, Texas
Trial Court No. 017-306356-19 Before Sudderth, C.J.; Birdwell and Walker, JJ.
MEMORANDUM OPINION
Appellant Donald W. Read challenges various aspects of the proceedings in the trial court, including the dismissal of his lawsuit. We affirm.
I. BACKGROUND
In February 2019, an inmate named Donald W. Read filed suit against a prison law library clerk named John Floyd, a party whom Read named "TDCJ Policy," and, later, the Texas Department of Criminal Justice's executive director Brian Collier. Read protested the withdrawal of $79.32 from his inmate trust account to cover the paper and stamps that TDCJ provided him for drafting and filing legal documents. Read argued that TDCJ was taking his property without due process, committing theft, and violating his right to access the courts under Bounds v. Smith, 430 U.S. 817, 824-25, 97 S. Ct. 1491, 1496 (1977).
However, Read soon began a dispute within a dispute over the issue of who should pay for copies related to service of process. In July 2019, the district court clerk notified Read that she could not issue citation unless he submitted file-marked copies of his petition or paid her to make copies of his petition. See Tex. R. Civ. P. 99(d) ("The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies."). Read subsequently moved to compel the clerk to provide him with free copies of his petition, citing Rule 145, which allows indigent parties to avoid certain court costs. The Tarrant County District Attorney interceded on the clerk's behalf, pointing out that Read had not yet filed a statement of inability to pay costs or sworn to his motion, as necessary under Rule 145, and that no rule required the clerk to provide Read with copies for free.
Read filed a series of objections, motions, and then "notices of appeal" in which he complained (in increasingly extreme rhetoric) of the theft of his $79.32, the clerk's refusal to provide him free copies, alleged government corruption, and other aspects of the case.
We dismissed an earlier interlocutory appeal arising from the same trial court proceeding for want of jurisdiction. See Read v. TDCJ Policy, No. 02-19-00462-CV, 2020 WL 1646749, at *1-2 (Tex. App.—Fort Worth Apr. 2, 2020, no pet.) (mem. op.).
The trial court denied Read's motions and objections, and in January 2020, the court ordered Read to show cause why the case should not be dismissed, given that he had failed to achieve service of process in the eleven months since he had filed the case.
Also in January 2020, Tarrant County District Clerk Thomas Wilder wrote to inform Read that "an anonymous donor" had paid the $13 cost to make copies of his petition for purposes of issuing citation, and the clerk asked Read to select his preferred method of service. However, more problems ensued. Read apparently requested that service be made by publication (even though there was no affidavit complying with Rule 109) and by the Tarrant County constable (even though some of the defendants were outside Tarrant County). Also, though the clerk attempted to issue citation, Read had not provided addresses for certain defendants.
The district attorney wrote to inform Read of the problems with his preferred methods of service. In his reply to the district attorney, Read insisted that the supposed problems with his preferred methods were merely a ploy by the district attorney, or, as Read put it, "just another tactic by government corruption to de-prive a indigent litigate [sic] of their state & federal constitutional protections of LAW!"
On March 3, 2020, the trial court denied Read's oral motion for appointment of counsel. Also on March 3, 2020, the trial court signed an order explaining that because Read had still not served any of the defendants, the case was being dismissed for want of prosecution. Read filed three more notices of appeal concerning the dismissal of his case and the denial of his motion for appointed counsel.
Because those notice related to this proceeding, no other cause numbers are pending.
On appeal, it is not entirely clear what Read's issues are. He generally states that the issues presented are "1. Denial of Access to Courts (Justice)" and "2. Arbitrary (Bias court rulings)." Still, there seem to be at least three types of argument in his brief, and we liberally construe those arguments as his issues. See Horton v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019).
First, he appears to argue that under Rule 145, the clerk should have been required to waive any fee for copies related to issuance of citation and service of process. He maintains that the copies are court costs that should be waived for an indigent defendant.
Read also cites Section 31.007(b) of the Texas Civil Practice and Remedies Code, though he offers no explanation as to how that provision applies. --------
In our prior opinion concerning the same issue, we disagreed with Read's argument on its merits. Read v. TDCJ Policy, No. 02-19-00462-CV, 2020 WL 1646749, at *1 (Tex. App.—Fort Worth Apr. 2, 2020, no pet.) (mem. op.); see In re Weeks, No. 07-20-00073-CV, 2020 WL 1696808, at *2 (Tex. App.—Amarillo Apr. 7, 2020, orig. proceeding) (mem. op.) (applying similar reasoning). However, since that time, an anonymous benefactor paid the $13 required to make the copies, and the clerk attempted to issue citation, which would seem to bring any controversy over the copies to an end. The mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events. Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). With the cost of the copies covered, any argument concerning whether Read should be excused from paying that cost is now moot.
Next, Read appears to challenge the denial of appointed counsel. He argues that the spirit of access to justice should require appointed counsel.
"A civil litigant has no general constitutional right to appointed counsel." Taylor v. Taylor, No. 2-09-035-CV, 2009 WL 4913867, at *2 (Tex. App.—Fort Worth Dec. 17, 2009, pet. denied) (per curiam) (mem. op.). Thus, "[c]ivil litigants are generally not entitled to be represented by counsel absent a legislative mandate." In re State, 556 S.W.3d 821, 827 (Tex. 2018) (orig. proceeding). The Legislature has statutorily provided for appointed counsel in certain types of civil cases, such as those involving juvenile delinquency and parental termination, but this case—an indigent inmate's claim concerning the withdrawal of $79.32 from his trust account—does not fall into one of those categories. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003).
However, a district court also has the inherent and statutory authority to appoint counsel to civil litigants. Id. at 712-13. When a trial court declines to appoint counsel under that authority, we review the decision for an abuse of discretion, In re T.H., No. 02-19-00300-CV, 2020 WL 5833624, at *2 (Tex. App.—Fort Worth Oct. 1, 2020, no pet.) (per curiam) (mem. op.), and "[t]he general rule is that a court does not abuse its discretion by refusing to appoint such counsel unless the case is 'exceptional,'" Albert v. Adelstein, No. 02-13-00073-CV, 2013 WL 4017511, at *4 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.) (per curiam) (mem. op.).
In general, this brand of suit is far from exceptional. "Inmate suits against prison personnel, rather than rare and unusual, are common." Gibson, 102 S.W.3d at 713. Read has offered no indication of exceptional circumstances within the case that would have otherwise justified appointing counsel. See $60,427.11 U.S. Currency v. State, No. 02-18-00165-CV, 2019 WL 3024475, at *4 (Tex. App.—Fort Worth July 11, 2019, no pet.) (mem. op.) (citing, inter alia, Taylor, 2009 WL 4913867, at *2). We therefore conclude that the trial court did not abuse its discretion by declining to appoint counsel.
Finally, Read challenges the dismissal of his suit. Read offers no legal argument against the dismissal order. Instead, Read personally attacks the trial court for issuing it, accusing the court of committing "perjur[y]" by signing the order, acting out of "ignorance" and "bias" for issuing a "falsified order," and, finally, "conspir[ing]" to generate a "falsified and perjured" judgment in an effort to "exploit and oppress the poor citizens of Texas into judicial commodities."
Read cites no legal authority for his inflammatory contentions, and his brief does not contain a clear and concise argument, both of which are required under our appellate rules. See In re P.S., 505 S.W.3d 106, 111 (Tex. App.—Fort Worth 2016, no pet.) (quoting Tex. R. App. P. 38.1(i)). "[L]itigants who represent themselves are held to the same standards as litigants represented by counsel." Id. Beyond the brief's basic inadequacy, we must note that we have little patience for "insulting, disrespectful, and unprofessional" assaults on the trial court's integrity. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex. 1997) (order on reh'g) (quoting Merrell Dow Pharms., Inc. v. Havner, 907 S.W.2d 565, 566 (Tex. App.—Corpus Christi-Edinburg 1994) (en banc) (per curiam)). We therefore deem this argument inadequately briefed and caution Read to be more respectful in the future.
We overrule Read's issues and affirm the trial court's judgment of dismissal.
/s/ Wade Birdwell
Wade Birdwell
Justice Delivered: March 18, 2021