                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00171-CV

DAMON BANKHEAD,
                                                             Appellant
v.

DAVID T. SPENCE, D.D.S.,
                                                             Appellee



                           From the 52nd District Court
                               Coryell County, Texas
                           Trial Court No. COT-08-38549


                                     OPINION


       Prison inmate Damon Bankhead appeals from the dismissal of the health care

liability claim he filed against David T. Spence, a prison dentist. Bankhead contends in

three issues that: (1) the court’s denial of his motion for appointed counsel constitutes a

“due process/open courts violation”; (2) the expert report requirement of section 74.351

of the Civil Practice and Remedies Code is an “exceptional circumstance” requiring the

appointment of counsel; and (3) the dismissal of his claim denied him due process of

law. We will affirm.
                                       Open Courts

       Bankhead contends in his first issue that the court’s denial of his motion for

appointed counsel constitutes a “due process/open courts violation.”

       Bankhead claims that Spence was negligent in filling one of his teeth in

November 2007. After exhausting his administrative remedies in the prison grievance

system, Bankhead filed suit on October 23, 2008. The 120-day statutory deadline for

filing an expert report was February 20, 2009. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a) (Vernon Supp. 2009). Bankhead filed a motion for appointment of counsel on

February 23. Spence filed a motion to dismiss for lack of the required expert report on

March 9. After a hearing, the court denied Bankhead’s motion for appointment of

counsel and granted Spence’s motion to dismiss.

              The Texas Constitution’s open courts guarantee provides that “[a]ll
       courts shall be open, and every person for an injury done him, in his
       lands, goods, person or reputation, shall have remedy by due course of
       law.” This provision assures that a person bringing a well-established
       common-law cause of action will not suffer unreasonable or arbitrary
       denial of access to the courts. “[I]t is, quite plainly, a due process
       guarantee.”

              A statute has the effect of denying access to the courts if it
       unreasonably abridges a plaintiff’s right to obtain redress for injuries
       caused by the wrongful acts of another. Proof of an open courts violation
       requires two elements: (1) a cognizable, common-law claim that is
       statutorily restricted, and (2) the restriction is unreasonable or arbitrary
       when balanced against the statute’s purpose and basis.

Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007) (quoting TEX.

CONST. art. I, § 13; Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983)) (other citations

omitted).



Bankhead v. Spence                                                                    Page 2
       Bankhead contends that the denial of his motion for appointed counsel

constitutes a due process and open courts violation “because the door to the court is

closed to him without counsel to assist him in filing the expert report.” This Court and

others have determined that the expert report requirement itself does not violate the

open courts guarantee because it “is rationally related to the purpose of the statute to

discourage frivolous malpractice suits.” Powell v. Clements, 220 S.W.3d 138, 140 (Tex.

App.—Waco 2007, pet. denied); accord Offenbach v. Stockton, 285 S.W.3d 517, 522-24 (Tex.

App.—Dallas 2009, pet. granted); see also Smalling v. Gardner, 203 S.W.3d 354, 370-71

(Tex. App.—Houston [14th Dist.] 2005, pet. denied) (addressing prior law).

       The Corpus Christi Court of Appeals has rejected a similar claim with respect to

a trial court’s refusal to appoint counsel in a civil case. See Nance v. Nance, 904 S.W.2d

890, 892-93 (Tex. App.—Corpus Christi 1995, no writ). In that case, the court concluded

that a refusal to appoint counsel was not arbitrary or unreasonable and thus did not

constitute a denial of access to the courts. Id.; cf. Yancy, 236 S.W.3d at 783 (“[open

courts] provision assures that a person bringing a well-established common-law cause

of action will not suffer unreasonable or arbitrary denial of access to the courts”). We

reach the same conclusion here.

       Bankhead argues that the denial of appointed counsel deprived him of the

opportunity to be heard at a meaningful time and in a meaningful manner. This is a

due process claim. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed.

2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’”) (quoting Armstrong v.


Bankhead v. Spence                                                                    Page 3
Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)); Tex. Workers’ Comp.

Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004) (citing Mathews).

       We will limit our inquiry to the question of whether Bankhead was deprived of

the opportunity to be heard in a meaningful manner because he did not file his motion

for appointment of counsel until the eve of the statutory deadline. 1 Any lack of

meaningful time lays solely at Bankhead’s feet because of his delay in requesting the

appointment of counsel.

       As the Supreme Court of Texas has explained, “plaintiffs in medical malpractice

cases are routinely represented by counsel on contingent fee contracts. As long as his

claims against Gibson were meritorious, Tolbert’s indigency should not have prevented

him from employing able counsel.” Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003). In

the same manner, Bankhead’s indigency should not have prevented him from retaining

counsel on a contingent-fee basis if his claims against Spence were meritorious.

       Generally, the federal constitution requires appointment of counsel only when an

indigent person may be deprived of his physical liberty. Lassiter v. Dep’t of Social Servs.,

452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640 (1981); Ridgway v. Baker, 720 F.2d

1409, 1413 (5th Cir. 1983); United States v. 1604 Oceola, 803 F. Supp. 1194, 1196 (N.D. Tex.

1992); Ex parte Walker, 748 S.W.2d 21, 22 (Tex. App.—Dallas 1988, no writ); Op. Tex.

Att’y Gen. No. JM-403 (1985).            The Texas constitution has not been interpreted

differently in this regard.       See NCAA v. Yeo, 171 S.W.3d 863, 867 n.14 (Tex. 2005)



1
      Although the file stamp on the motion is dated 3 days after the 120-day deadline, the cover letter
accompanying the motion is dated 2 days before this deadline.


Bankhead v. Spence                                                                               Page 4
(“’While the Texas Constitution is textually different in that it refers to “due course”

rather than “due process,” we regard these terms as without meaningful distinction.’

As a result, in matters of procedural due process, we have traditionally followed

contemporary federal due process interpretations of procedural due process issues.”)

(quoting Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (other citations

omitted)).

       “[A]s a litigant’s interest in personal liberty diminishes, so does his right to

appointed counsel.” Lassiter, 452 U.S. at 26, 101 S. Ct. at 2159. Nevertheless, the United

States Supreme Court held in Lassiter that due process may require the appointment of

counsel in cases not involving a potential deprivation of personal liberty. Id. at 31-32,

101 S. Ct. at 2162.

       [There are] three elements to be evaluated in deciding what due process
       requires, viz., the private interests at stake, the government’s interest, and
       the risk that the procedures used will lead to erroneous decisions. We
       must balance these elements against each other, and then set their net
       weight in the scales against the presumption that there is a right to
       appointed counsel only where the indigent, if he is unsuccessful, may lose
       his personal freedom.

Id. at 27, 101 S. Ct. at 2159 (citing Mathews, 424 U.S. at 334-35, 96 S. Ct. at 903). This

decision must be made on a case-by-case basis. See id. at 31-32, 101 S. Ct. at 2161-62;

1604 Oceola, 803 F. Supp. at 1197.

       The Supreme Court concluded in Lassiter that due process did not require the

appointment of counsel under the circumstances of that parental-rights termination

case. Lassiter, 452 U.S. at 32-33, 101 S. Ct. at 2162-63. A Texas federal district court

reached the same conclusion in a forfeiture proceeding involving the claimants’


Bankhead v. Spence                                                                      Page 5
“substantial and important” interest in maintaining ownership of their family home.

1604 Oceola, 803 F. Supp. at 1197-98.

        Here, Bankhead had nearly sixteen months after his tooth was filled and before

the statutory dismissal date to retain counsel. He was aware before filing suit that the

provisions of Chapter 74 applied to his lawsuit. He included with his petition an

authorization for release of protected health information as provided by section 74.052.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052 (Vernon 2005).                          His petition itself

acknowledges that the claim is filed “pursuant to CP & R §74.001.” Id. § 74.001 (Vernon

2005). He told the trial court that he had contacted ten attorneys about representing

him but received responses from only two, both declining to represent him but referring

him to other counsel.2

        Compensation for an alleged civil wrong is an important legal interest, but it is

not a compelling one, particularly not under the facts of this case.                            Under the

circumstances, we cannot say the private interests at stake and the risk of an erroneous

deprivation are so substantial as to overcome the presumption against the right to

appointed counsel. See Lassiter, 452 U.S. at 32-33, 101 S. Ct. at 2162-63; 1604 Oceola, 803

F. Supp. at 1197-98; see also Nance, 904 S.W.2d at 892-93.




2
         Bankhead has attached letters from two attorneys to his brief. Assuming that these are the two
responses he mentioned at the hearing, we note that in both instances he did not contact these attorneys
until after the statutory dismissal date had passed. Cf. Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27,
39 n.14 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (appellate court may not consider documents
attached to brief but not included in appellate record).


Bankhead v. Spence                                                                                     Page 6
       The expert report requirement of section 74.351 does not violate the open courts

guarantee because it “is rationally related to the purpose of the statute to discourage

frivolous malpractice suits.” Powell, 220 S.W.3d at 140. Bankhead has not established a

due process right to counsel. To the extent Bankhead contends that the denial of

counsel, standing alone, violates the open courts guarantee, we disagree.              The

limitations placed on appointment of counsel in civil proceedings by the Texas Supreme

Court are rationally related to the legislature’s intent to discourage frivolous inmate

suits. See Gibson, 102 S.W.3d at 713.

       Bankhead’s first issue is overruled.

                                Exceptional Circumstance

       Bankhead contends in his second issue that the expert report requirement is an

“exceptional circumstance” requiring the appointment of counsel. We disagree.

       The motion for appointed counsel in Gibson was filed in response to the

defendant’s motion to dismiss for failure to file an expert report under the predecessor

to section 74.351.    Id. at 711-12.    The Court held that exceptional circumstances

warranting appointment of counsel were not present in that case. Id. at 713. Other

appellate courts have reached the same conclusion in suits governed by section 74.351.

See Conely v. Brackenridge Hosp., No. 03-05-00782-CV, 2007 WL 2214484, at *2-3 (Tex.

App.—Austin July 31, 2007, no pet.); Jenkins v. Tex. Dep’t of Criminal Justice, No. 13-03-

00073-CV, 2004 WL 1117171, at *1-2 (Tex. App.—Corpus Christi May 20, 2004, no pet.);

Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268, 274-75 (Tex. App.—Houston [1st

Dist.] 2004, no pet.). We are aware of no decision reaching the opposite conclusion.
       Bankhead’s second issue is overruled.

                              Constitutionality of Section 74.351

       Bankhead contends in his third issue that the dismissal of his claim denied him

due process of law. 3         He characterizes this as an as-applied challenge to the

constitutionality of section 74.351, citing Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.

App.—Austin 2006, no pet.).

       In Herrera, however, the Austin Court of Appeals held that section 74.351 was not

unconstitutional as applied.        Id. at 461-62.     Other courts have reached the same

conclusion. Offenbach, 285 S.W.3d at 524; Smith v. Hamilton, No. 09-07-00128-CV, 2007

WL 1793754, at *2-3 (Tex. App.—Beaumont June 21, 2007, no pet.); Thoyakulathu v.

Brennan, 192 S.W.3d 849, 855-56 (Tex. App.—Texarkana 2006, no pet.); see also Walker v.

Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) (rejecting as-applied challenge to predecessor to

section 74.351).

       Bankhead’s argument does not persuade us that a different result should obtain

in his case. His third issue is overruled.

       We affirm the judgment.



                                                              FELIPE REYNA
                                                              Justice




3
        Bankhead includes an open courts argument within his third issue. However, we fully addressed
his open courts complaint in addressing his first issue.


Bankhead v. Spence                                                                            Page 8
Before Chief Justice Gray,
        Justice Reyna, and
        Justice Davis
        (Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment of dismissal. He does not join the opinion. A separate opinion
will not issue.)
Affirmed
Opinion delivered and filed March 24, 2010
[CV06]




Bankhead v. Spence                                                                   Page 9
