In Re Martin (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Jennings)
inmate litigation, prison-bound author's suit against would-be publisher dismissed as frivolous)
Appellant, Timothy Paul Martin, who is incarcerated and represents himself pro se,
contends that the trial court abused its discretion in determining that his lawsuit is
frivolous and dismissing his lawsuit with prejudice without holding an evidentiary
hearing. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Terry Jennings     
Before Justices Jennings, Hanks and Bland
01-09-00175-CV   In re Timothy Paul Martin    
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge:  Hon. W. Edwin Denman


    Appellant, Timothy Paul Martin, who is incarcerated and represents himself pro se, contends that the trial
court abused its discretion in determining that his lawsuit is frivolous and dismissing his lawsuit with prejudice
without holding an evidentiary hearing.

    We affirm.


    In his petition, Footnote Martin alleges that between 2000 and 2009, he had corresponded with defendants
Holloway House Publishing, Editor Leonard King, Associate Editor Mitchel Neal, Time Warner, Random House,
Harper Collins, Penguin Group USA, Inc., and Liza Dawson Associates, Literary Agent Partnership Group
(collectively, the defendants), Footnote about his interest in collaborating with the defendants “regarding the
consignment, publication, promotion and distribution” of numerous “original works of literature” that he
authored. Martin complains that the defendants had “neglected to review [his] works or collaborate with due
diligence or in good faith.”

    Martin further alleges that he had produced multiple “manuscripts” that he considered to be “priceless and
worth millions of dollars.” These manuscripts included, among others, a true story about himself entitled “In
Search of Paradise,” a story about an attorney who saved his secretary from being sacrificed entitled “The
Madeanna Dagger,” a science fiction work involving a mission to a second universe “to bring seven new suns
and moons out of eclipse in order to save the original universe” entitled “Eclipse,” a fairy tale about famous
traditional holidays entitled “The Holiday Collection,” and a “porno” story. Martin states that the defendants
had taken advantage of the “unequal power they had accumulated” in the publishing business, violated a
special and confidential relationship between him and them, failed to return certain manuscripts to him, and
destroyed some of the manuscripts. Martin also asserts that the defendants had misled him in violation of the
Texas Deceptive Trade Practices Act (“DTPA”). Footnote Finally, Martin asserted that defendants had
discriminated against him and had violated his due process and equal protection rights under the United
States Constitution. Footnote

    Martin states in his petition that he had previously pursued “various other lawsuits” against all of the named
defendants, other than Holloway House. Martin also filed, in conjunction with his petition, a motion for
permission to file this lawsuit. In this motion, Martin stated that “the facts of the present claims were not a part
of any prior judgment because the present facts arose after any prior court judgment,” but he further stated
that prior court judgments proximately caused his present claims. Martin also filed an affidavit related to
lawsuits he had previously filed. Footnote

    After reviewing the pleadings, the trial court determined that Martin’s lawsuit is frivolous and that Martin had
failed to state a cause of action as a matter of law. Thus, it dismissed Martin’s lawsuit with prejudice.          


    In his sole issue, Martin argues that trial court abused its discretion in dismissing his lawsuit with prejudice
without holding an evidentiary hearing because he was denied the opportunity to present letters to the trial
court establishing that he and the defendants had engaged in correspondence regarding his manuscripts.

    Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.001–.014. (Vernon 2002). Under Chapter 14, a trial court may dismiss an inmate suit
brought in forma pauperis, either before or after service of process, by finding that it is frivolous or malicious.
Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the trial court may consider
whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law
or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially
similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. §
14.003(b)(1)–(4). In finding that a claim is frivolous or malicious, the court “may” hold a hearing “before or after
service of process” and “it may be held on motion of the court, a party, or the clerk of the court.” Id. § 14.003

    We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for abuse of discretion.
Footnote See Wilson v. TDCJ-ID, 268 S.W.3d 756, 758 (Tex. App.—Waco 2008, no pet.); Thompson v. Tex.
Dep’t of Crim. Justice–Inst. Div., 33 S.W.3d 412, 414 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). When
a lawsuit is dismissed as frivolous for having no basis in law or in fact, and no fact hearing was held, our review
focuses on whether the inmate’s lawsuit has an arguable basis in law, which we review de novo. Scott v.
Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A claim has no arguable basis
in law if it is based on an indisputably meritless legal theory. Id. In conducting our de novo review, we take as
true the allegations of the inmate’s petition. Id.

    Martin has not cited any authority or offered any explanation that would allow him to proceed on a claim for
the violation of the DTPA as a result of his engaging in correspondence with and mailing of manuscripts to the
defendants. We note that consumer status is an essential element of a DTPA claim. Rivera v. S. Green Ltd. P’
ship, 208 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Doe v. Boys Clubs of
Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)). A consumer is an individual who seeks or acquires
goods or services by purchase or lease. Id.; Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon Supp. 2009)
(“‘Consumer’ means an individual, partnership, corporation, this state, or a subdivision or agency of this state
who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a
business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or
entity with assets of $25 million or more.”). Whether a plaintiff is a consumer under the DTPA is a question of
law for the court to decide. Rivera, 208 S.W.3d at 21. Martin’s petition reveals that he does not claim to qualify
as a consumer of a good or service from the defendants. Similarly, Martin has made no allegation supportive
of a due process or equal protection claim. In sum, based upon the claims asserted in his petition, the trial
court could have concluded that Martin’s lawsuit lacked any merit and was frivolous. See Tex. Civ. Prac. &
Rem. Code Ann. § 14.003. Finally, in regard to his complaint about the lack of a hearing, the statute expressly
provides that a trial court “may,” in its discretion, conduct a hearing to determine whether an inmate’s suit is
frivolous. Id. § 14.003(c); Presiado v. Sheffield, 230 S.W.3d 272, 274–75 (Tex. App.—Beaumont 2007, no
pet.) (“The statute states that the trial court “may” hold a hearing, but it does not require the trial court to do so
before dismissing a claim.”).  

    Accordingly, we hold that the trial court did not abuse its discretion in not holding an evidentiary hearing
and did not err in dismissing Martin’s lawsuit under Chapter 14 as frivolous.

    We overrule Martin’s sole issue.


    We affirm the order of the trial court.

Terry Jennings


Panel consists of Justices Jennings, Hanks, and Bland.