             TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                            NO. 03-02-00612-CV



                                          John T. Josey, Appellant

                                                        v.

             Bell County Law Enforcement Center; Sheriff Dan Smith; and Administrator
                                   R. W. Patterson, Appellees




             FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
                  NO. 193050-B, HONORABLE RICK MORRIS, JUDGE PRESIDING




                                MEMORANDUM OPINION


                  John T. Josey appeals from the dismissal of his petition for access to a law library at the Bell

County Law Enforcement Center. The district court dismissed the petition as frivolous and malicious, and

because it failed to comply with Chapter 14 of the Civil Practice and Remedies Code. We will affirm the

dismissal.

                  State law provides several bases for district courts to dismiss litigation by an inmate who

files an affidavit or declaration of inability to pay the costs of litigation. See Tex. Civ. Prac. & Rem. Code

Ann. ' 14.003(a) (West 2002). A district court may dismiss a suit by an inmate who files an affidavit or

declaration of inability to pay the costs of litigation if the suit is frivolous or malicious. See id.
' 14.003(a)(2). In considering whether a claim is frivolous or malicious, a court must 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. Id. ' 14.003(b). The first three considerations are also available

when considering whether an action by an indigent non-inmate is frivolous or malicious. See id. '

13.001(b). The court may also dismiss the suit if the inmate fails to file an affidavit or declaration identifying

previous lawsuits brought by the inmate pro se. See id. '14.004 (West 2002).

                 The record does not contain an affidavit or declaration from Josey regarding his previous

lawsuits. When such an affidavit or declaration is incomplete, dismissal is not an abuse of discretion,

although dismissal with prejudice is not appropriate. Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.

App.CHouston [14th Dist.] 2000, no pet.). The court did not abuse its discretion by dismissing Josey=s suit

for failure to file an affidavit or declaration regarding previous pro se litigation, but the failure to file the

affidavit alone does not support the dismissal with prejudice.

                 The nature of Josey=s petition provides a basis for the district court=s determination that the

petition was frivolous independent of his failure to file the declaration regarding previous litigation. An

inmate claiming that he was deprived of access to a law library must allege how he was deprived of that

right. Hickson v. Allison, 928 S.W.2d 677, 678 (Tex. App.CWaco 1996, no writ). The appellate court

in Hickson concluded that dismissal of the inmate=s claim was appropriate because he Afailed to plead that

he had been permanently deprived of anything. . . . He did not state how much time he allegedly lost or that




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prison officials refused to allow him to make up the lost time, whatever it may have been, on another date.@

Id.

                 Josey=s petition in the district court cites several cases detailing the parameters of the right of

an incarcerated person to meaningful access to a law library, but the petition lacks any factual allegations

showing how his right of access was violated. In documents filed after the dismissal, Josey alleges that he

has been incarcerated for too long without a trial, complains about a notice sent by the district clerk

erroneously stating that this cause had been dismissed at his request, and lists other grievances against the

judicial and correctional systems. None of these allegations bears on deprivation of his right of access to a

law library. In a document filed four weeks after the dismissal, he mentions that he has enrolled in

correspondence law courses, but does not allege that a college class fits within the requirement, based on

the constitutional right of access to the courts, that prisons assist inmates in the preparation and filing of

useful legal papers by providing prisoners with meaningful access to adequate law libraries. See Hickson,

928 S.W.2d at 678 (citing Bounds v. Smith, 430 U.S. 817, 827 (1977)). Nor does Josey allege specific

instances at which he was denied access to the library or that the prison officials did not or could not

remedy that denial. See Hickson, 928 S.W.2d at 678.

                 On appeal, Josey reiterates his complaints from the district court and adds complaints

regarding such issues as the seizure of a vehicle from his family and a conflict of interest in the county

attorney prosecuting him for crimes and defending appellants in this action. In his reply brief, he makes

some factual allegations regarding his exclusion from the law library. In supplemental briefs, he adds

complaints for damages for his mental anguish and other injuries resulting from the various deprivations of his


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rights. We cannot consider these additional complaints and allegations because they were not before the

district court.

                  Josey=s failure to file an affidavit or declaration regarding his previous pro se litigation and

failure to include a factual allegation in his district court petition regarding how he was denied meaningful

access to a law library compels us to conclude that the district court did not err by finding that his petition

was frivolous. We affirm the judgment.




                                                    David Puryear, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: March 13, 2003




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