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Opinion issued May 10,=20 2007














In The

Court of=20 Appeals

For=20 The

First=20 District of Texas



NO.=20 01-05-01177-CV



HOWARD=20 VANZANDT WILLIAMS, Appellant



V.


TEXAS=20 DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION and KIMBERLY = FRAZER,=20 Appellees



On = Appeal=20 from the 23rd District Court

Brazoria=20 County, Texas

Trial Court=20 Cause No. 12976



MEMORANDUM=20 OPINION

Appellant,=20 Howard Vanzandt Williams, appeals an order dismissing his lawsuit = against=20 appellees, the Institutional Division of the Texas Department of = Criminal=20 Justice (TDCJ) and corrections officer Kimberly Frazer, as = frivolous under=20 chapter 14 of the Texas Civil Practice and Remedies Code. See=20 Tex. Civ. Prac. & Rem. Code Ann. =A7 14.003(a)(2) (Vernon = 2002). In=20 four issues on appeal, Williams contends that the trial court = violated the=20 Texas and United States constitutions and abused its discretion = (1) by=20 dismissing his lawsuit when his case was already set for trial, = (2) by=20 dismissing his lawsuit when the parties had not agreed to a = statement of=20 facts, (3) by entering a void judgment, and (4) by violating = various rules=20 of civil procedure. We conclude that the trial court had = jurisdiction to=20 dismiss the case under chapter 14 of the Civil Practice and = Remedies Code,=20 which permits the trial court to dismiss a lawsuit without a = hearing,=20 without an agreed statement of facts, and after the case has been = set for=20 trial. We further conclude that Williams's assertions that the = judgment is=20 void and the state and that federal constitutions were violated = are=20 inadequately briefed, and are therefore waived. We affirm. =

Background

Williams=20 was an inmate at TDCJ's Darrington Unit in Rosharon, Texas.=20 (1) Williams, a diabetic, received surgery for carpal = tunnel=20 syndrome in his right hand at John Sealy Hospital in Galveston, = but he=20 reported no improvement of his symptoms when he was later examined = by his=20 surgeon. On May 30, 2002, about two years after his surgery, = Williams was=20 transported from John Sealy Hospital to the Darrington Unit after = medical=20 appointments. According to Williams, corrections officer Frazer = placed leg=20 irons over his hand braces, despite a pass that provided that on = that day=20 he was to wear "leg irons only." The leg irons "cut grooves" into = his=20 hands and "increased the pain."

Upon=20 arrival at the Darrington Unit, a nurse at the TDCJ clinic = examined=20 Williams's hands and reported that there were no cuts on his = hands, that=20 restraints were placed over the wrist supports he wore as = treatment for=20 his carpal tunnel syndrome, that there was no redness or swelling, = and=20 that there was a small red mark on the right wrist. Approximately = 45=20 minutes later, the same nurse again examined Williams's hands, = when he=20 complained of swelling in his hands due to restraints that were = too tight.=20 The nurse noted "slight swelling" at the right wrist area and a = minor skin=20 mark at the right wrist. On June 12, 2000, Williams had a = follow-up=20 doctor's appointment by video link. Although Williams complained = of=20 swelling in his hand, the doctor ascertained that the wound was = healing=20 and gave a prognosis that "[t]his is likely stable."

Williams=20 filed a lawsuit against Frazer and the TDCJ, claiming that the = injuries=20 received while under Frazer's supervision violated his Eight = Amendment=20 rights under 42 U.S.C. =A7 1983. See 42 U.S.C.S. =A7 1983 = (LexisNexis=20 2002). Williams filed the lawsuit in forma pauperis in the = Brazoria County=20 District Court by filing an unsworn declaration claiming that he = is=20 incarcerated and has insufficient funds in his inmate trust = account or=20 from any other source to pay the filing fees for the lawsuit. At = the time=20 the original petition was filed, Williams also filed, pursuant to = chapter=20 14 of the Texas Civil Practice and Remedies Code, (1) a copy of = the=20 offender grievance form that was used to complain of this matter = in the=20 internal grievance system of TDCJ, and (2) a declaration detailing = previous lawsuits filed by Williams. Tex. Civ. Prac. & Rem. = Code Ann.=20 =A7=A7 14.004, 14.005 (Vernon 2002).

Williams=20 filed a motion to sever TDCJ as a defendant so that he could = continue=20 against Frazer only, and filed a motion for default judgment = against=20 Frazer. A trial date was set for December 5, 2005.

Frazer=20 filed an answer on October 11, 2005, asserting that she was immune = from=20 liability and acting in her "official capacity as an employee of = an agency=20 of the State of Texas." She additionally asserted that Williams = failed to=20 state a claim upon which relief could be granted.

Also on=20 October 11, 2005, TDCJ and Frazer, through the Attorney General, = filed a=20 Motion to Dismiss under section 14.003 of the Texas Civil Practice = and=20 Remedies Code. The motion asserted that the claims against Frazer = and TDCJ=20 are "frivolous or malicious" under chapter 14 because (1) TDCJ is = not a=20 person under 42 U.S.C. =A7 1983, (2) Williams cannot recover from = Frazer=20 under 42 U.S.C. =A7 1983, (3) Williams had only de minimis = injuries=20 and he failed to state a claim against Frazer as an individual, = (4) Frazer=20 is entitled to qualified immunity, (5) Williams's chances of being = successful under the lawsuit are slight, and (6) Williams's claims = have no=20 basis in law. Williams was mailed notice that the motion for = dismissal=20 would be submitted to the trial court on November 7, 2005 without = a=20 hearing. Williams filed an objection on November 7, 2005. Two = weeks later,=20 the trial court granted the motion to dismiss the lawsuit. =

Chapter=20 14

As part of = his=20 second and fourth issues, Williams challenges the trial court's = dismissal=20 of his lawsuit under chapter 14 of the Texas Civil Practice and = Remedies=20 Code by claiming that the trial court improperly dismissed the = case in=20 violation of the rules of civil procedure. Williams specifically = points to=20 violations of rules 245=20 (2) and 247=20 (3) by asserting that they require a showing of good = cause=20 before his case can be taken from the trial court's docket, and = rule 263=20 by claiming that parties must = file an=20 agreed statement of facts before the motion to dismiss can be = considered=20 without a hearing.=20 (4) See Tex. R. Civ. P. 245, 247, 263. =

Chapter 14 = of the=20 Texas Civil Practice and Remedies Code applies to a lawsuit = brought, as=20 this suit was, by an inmate who seeks to proceed in forma pauperis = by=20 filing an affidavit or unsworn declaration of inability to pay = costs.=20 See Tex. Civ. Prac. & Rem. Code Ann. =A7 14.002 = (Vernon 2002).=20 It imposes certain procedural requirements that must be met before = an=20 inmate may proceed. See, e.g., id. =A7=A7 14.004, 14.005, = 14.006(f).=20 Chapter 14 further permits a trial court to dismiss an inmate's = lawsuit=20 that the court finds to be malicious or frivolous. Id. = =A7=20 14.003(a)(2).

We review a=20 dismissal under chapter 14 for abuse of discretion. Moreland = v.=20 Johnson, 95 S.W.3d 392, 394 (Tex. App.--Houston [1st Dist.] = 2002, no=20 pet.). A trial court commits an abuse of discretion if it acts=20 arbitrarily, capriciously, and without reference to guiding rules = or=20 principles. Id.

To dismiss=20 under chapter 14, the trial court may grant a hearing, but a = hearing is=20 not required. Tex. Civ. Prac. & Rem. Code Ann. =A7 14.003(c) = ("In=20 determining whether [to dismiss a suit as frivolous or malicious], = the=20 court may hold a hearing."). Thus, = whether or not=20 to hold a hearing when dismissing a suit as frivolous lies within = the=20 sound discretion of the trial court. See Moreland, 95 = S.W.3d at=20 394 (citing Williams v.=20 Brown, 33 S.W.3d 410, 411 (Tex. App.--Houston [1st Dist.] = 2000, no=20 pet.)). Chapter 14 also does not restrict the timing of the = hearing, if=20 any hearing is held. Tex. Civ. Prac. & Rem. Code Ann. =A7 = 14.003(c)=20 ("The hearing may be held before or after service of process."). = We=20 conclude that the dismissal under chapter 14 was not improper = merely by=20 the trial court's decision not to conduct a hearing.

Williams=20 further complains that the rules of civil procedure were not = followed by=20 the trial court because the trial court dismissed the case on = November 21,=20 2005, after it had been set for trial on December 5, 2005. = Williams also=20 contends that there was no agreed statement of facts. Chapter 14 = "may not=20 be modified or repealed by a rule adopted by the supreme court." = Tex. Civ.=20 Prac. & Rem. Code Ann. =A7 14.014 (Vernon 2002). Williams may = not rely=20 on the rules of civil procedure to constrain the trial court's = broad=20 discretion on a chapter 14 motion to dismiss. See id.; = see=20 also Retzlaff v. Tex. Dept. of Crim. Justice, 94 S.W.3d 650, = 653=20 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) ("Trial courts = are=20 given broad discretion in determining whether a case should be = dismissed"=20 under section 14.003); McCollum v. Mt. Ararat Baptist Church,=20 Inc., 980 S.W.2d 535, 537 (Tex. App.--Houston [14th Dist.] = 1998, no=20 pet.) (holding that, consistent with statute's purpose of = controlling=20 flood of frivolous suits, "applicability of chapter fourteen is = not=20 contingent on the defendant's satisfaction of any = procedural=20 rule") (emphasis in original). We conclude that the trial court = did not=20 need an agreed statement of facts to dismiss the lawsuit under = chapter=20 14. See McCollum, 980 S.W.2d at 537. We also conclude = that the=20 trial court could properly dismiss the lawsuit under chapter 14 = even=20 though the case had been set for trial. See id. We hold = that=20 trial court did not abuse its discretion by dismissing Williams' = lawsuit=20 under chapter 14, despite any failure by the court to apply = rules 245, = 247, and=20 263 of the Texas Rules of Civil Procedure. We = overrule those=20 portions of Williams's second and fourth issues pertaining to the = alleged=20 violations of the Texas Rules of Civil Procedure. = Constitutional=20 Issues and Voidness

In his=20 first issue, Williams asserts that the trial court abused its = discretion=20 by considering the motion to dismiss under chapter 14 thereby = "changing=20 the trial court's order that set the case for trial," which = violated "the=20 due course provisions of the Texas Constitution and the Due = Process clause=20 of the United States Constitution and laws of the United States." = In his=20 second and fourth issues, Williams also complains of violations of = the=20 Texas and United States constitutions. Williams's third issue as = listed in=20 his brief challenges the trial court's dismissal by stating that = it=20 "OFFEND[S] THOSE PROVISIONS AS SET OUT IN THE DUE COURSE = PROVISIONS=20 (ARTICLE 1, SECTIONS 13 AND 19) OF THE TEXAS CONSTITUTION AND THE = DUE=20 PROCESS CLAUSE OF THE CONSTITUTION AND LAWS OF THE UNITED STATES." = (Emphasis in original.) He also includes a "question" that = suggests that=20 the dismissal was contrary to the 5th, 6th, and 14th Amendments of = the=20 United States Constitution. He further claims that the trial = court's=20 judgment is void. An appellant's brief "must contain a clear and = concise=20 argument for the contentions made, with appropriate citations to=20 authorities and to the record." Tex. R. App. P. 38.1(h). An = appellate=20 issue is waived when the brief fails to contain clear argument for = the=20 contentions made. See id.; see also Brock v. = Sutker, 215=20 S.W.3d 927, 929 (Tex. App.--Dallas 2007, no pet.) (holding issue = waived by=20 brief that makes no attempt to analyze trial court's order within = context=20 of cited authority). Williams cites several provisions of the = federal and=20 state constitutions, asserting that the trial court's order = violates these=20 provisions. However, he does not explain his assertions, nor does = he cite=20 to any authority in support thereof. He further cites to no = authority=20 supporting the contention that the trial court's dismissal was = void. We=20 hold that Williams's constitutional arguments and assertion about = a void=20 judgment are waived. See Tex. R. App. P. 38.1(h); = Brock,=20 215 S.W.3d at 929.

We overrule=20 Williams's complaints of constitutional violations and claim of = void=20 judgment, as asserted in his first through fourth issues. =

Reply=20 Brief

Williams=20 briefly addresses the substantive merits of the trial court's = dismissal=20 for the first time in his reply brief filed in this appeal. The = Texas=20 Rules of Appellate Procedure do not allow an appellant to include = in his=20 reply brief a new issue that responds to a matter that was raised = in=20 appellee's brief but that was not raised in the appellant's = original=20 brief. 2218 Bryan Street, Ltd., v. City of Dallas, 175 = S.W.3d 58,=20 65 (Tex. App.--Dallas 2005, pet. denied); see also Tex. = R. App.=20 P. 38.3. We hold that appellant has waived any challenge to the=20 substantive merits of the chapter 14 dismissal due to his failure = to=20 assert on appeal any challenge to the merits of the dismissal = until his=20 reply brief. See 2218 Bryan Street, 175 = S.W.3d=20 at 65; see also Tex. R. App. P. = 38.3.

Conclusion

We affirm=20 the judgment of the trial court.




Elsa=20 Alcala

Justice


Panel=20 consists of Justices Taft, Jennings, and Alcala.=20

1. Williams is now an inmate at the Beto I = unit in=20 Tennessee Colony, Texas, identified in the TDCJ by CID = #539975.=20

2. Rule 245. Assignment of Cases for = Trial



The Court=20 may set contested cases on written request of any party, or on the = court's=20 own motion, with reasonable notice of not less than forty-five = days to the=20 parties of a first setting for trial, or by agreement of the = parties. . .=20 .



A = request=20 for trial setting constitutes a representation that the requesting = party=20 reasonably and in good faith expects to be ready for trial by the = date=20 requested, but no additional representation concerning the = completion of=20 pretrial proceedings or of current readiness for trial shall be = required=20 in order to obtain a trial setting in a contested = case.


Tex. R.=20 Civ. P. 245.=20

3. Rule 247. Tried When=20 Set



Every suit=20 shall be tried when it is called, unless continued or postponed to = a=20 future day or placed at the end of the docket to be called again = for trial=20 in its regular order. No cause which has been set upon the trial = docket of=20 the court shall be taken from the trial docket for the date set = except by=20 agreement of the parties or for good cause upon motion and notice = to the=20 opposing party.



Tex. R.=20 Civ. P. 247.=20

4. Rule 263. Agreed=20 Case



Parties may=20 submit matters in controversy to the court upon an agreed = statement of=20 facts filed with the clerk, upon which judgment shall be rendered = as in=20 other cases; and such agreed statement signed and certified by the = court=20 to be correct and the judgment rendered thereon shall constitute = the=20 record of the cause.



Tex. R.=20 Civ. P. 263.

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