                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-18-00112-CV
                               ________________________


                              STEVEN BOYD, APPELLANT

                                             V.

             COREY DUSTIN JONES AND ROBERT LOVE III, APPELLEES



                           On Appeal from the 47th District Court
                                  Randall County, Texas
       Trial Court No. 73,319-A; Honorable David L. Gleason, Presiding by Assignment


                                        May 17, 2019

                             MEMORANDUM OPINION
                       Before CAMPBELL, PIRTLE, and PARKER, JJ.


       Steven Boyd, an inmate proceeding pro se and in forma pauperis, appeals the trial

court’s Order Dismissing “Due Course of Law Complaint” he filed against Robert Love III

and Corey Dustin Jones. By three issues, he contends (1) the trial court abused its

discretion in dismissing his complaint for failing to appropriately state a cause of action;

and that the trial court erred in (2) finding that his claim’s realistic chance of success was
slight, had no arguable basis in law, and that Boyd could not prove facts in support of his

claim; and (3) dismissing his suit because the requested admissions were deemed

admitted. We affirm.


       BACKGROUND

       On January 17, 2018, Boyd sued Love, a Randall County prosecutor, and Jones,

an Amarillo police officer, for allegedly conspiring to deprive him of his due process rights

in a robbery prosecution in trial court cause number 24,143-A. By his “Due Course of

Law Complaint,” Boyd alleged that Jones “fabricated and distributed a false confession

to prosecutors” and that Love “allow[ed] it to go uncorrected.” He claims Appellees’

actions violated Article I, Sections 10 and 19 of the Texas Constitution as well as the Fifth

and Fourteenth Amendments to the United States Constitution.


       Simultaneously with his complaint, Boyd filed a discovery request pursuant to Rule

190.3 of the Texas Rules of Civil Procedure and a request for admissions under Rule

198.1. TEX. R. CIV. P. 190.3, 198.1. Several months later, the trial court dismissed Boyd’s

suit pursuant to section 14.003(b) of the Texas Civil Practice and Remedies Code. Boyd

now challenges that dismissal.


       We further note that, although the clerk’s record contains two “citation” requests

for Appellees, there is nothing to indicate they were ever served. Boyd filed a document

entitled “Tex. R. App. Proc. Rule 2 Motion to Suspend Tex. R. Civ. Proc. Rule 21(A) and

Tex. R. App. Proc. Rule 9.3,” by which he requested suspension of the rules requiring




                                             2
service of process.1 Rule 2 of the Texas Rules of Appellate Procedure allows this court

to suspend the operation of appellate rules except in two instances not relevant here.

TEX. R. APP. P. 2. Rule 2 does not apply to suspend the operation of the Texas Rules of

Civil Procedure and, generally, there must be valid service of process on the defendant

for a plaintiff to invoke the trial court’s jurisdiction. Kawasaki Steel Corp. v. Middleton,

699 S.W.2d 199, 200 (Tex. 1985). A defendant may, however, waive the issuance and

service of process by appearing and voluntarily submitting to the jurisdiction of the trial

court. Houston Crushed Concrete v. Concrete Recycling Corp., 879 S.W.2d 258, 260

(Tex. App.—Houston [14th Dist.] 1994, no writ). For the purpose of this proceeding, we

will assume without deciding, that Love and Jones were subject to the jurisdiction of the

trial court.


        APPLICABLE LAW

        The statutory scheme for indigent inmate litigation is governed by chapter 14 of

the Texas Civil Practice and Remedies Code. §§ 14.001 - 14.014 (West 2017). Dismissal

of a suit is authorized under chapter 14 on a finding that the action is frivolous or

malicious. § 14.003(a)(2). A trial court may consider whether a suit has an arguable

basis in law or in fact when making the determination whether the suit is frivolous or

malicious. § 14.003(b)(2); Lagaite v. Boland, 300 S.W.3d 911, 913 (Tex. App.—Amarillo

2009, no pet.).




        1 Rule 21a of the Texas Rules of Civil Procedure provides for the methods for service of process.
TEX. R. CIV. P. 21a. Rule 9.3 of the Texas Rules of Appellate Procedure provides that if a document is not
electronically filed, a party must file the original and one unbound copy in this court. TEX. R. APP. P. 9.3(a).

                                                       3
       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.

§ 14.003(b). However, when a claim is dismissed without conducting an evidentiary

hearing, the dismissal can only be affirmed if the claim has no arguable basis in law.

Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied). A

claim has no basis in law if it is an indisputable meritless legal theory. Leachman v.

Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort Worth 2008, no pet.). In other words, we

review a complaint to determine whether, as a matter of law, it stated a cause of action

that would authorize relief. Scott v. Gallagher, 209 S.W.3d 262, 266-67 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). We review de novo whether a claim has an arguable

basis in law. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.]

2002, no pet.).


       STANDARD OF REVIEW

       Applying the above-referenced standards, we review the dismissal of an indigent

inmate’s chapter 14 suit for abuse of discretion. Bishop v. Lawson, 131 S.W.3d 571, 574

(Tex. App.—Fort Worth 2004, pet. denied); Retzlaff v. Tex. Dep’t of Criminal Justice, 94

S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). A trial court abuses

its discretion when it acts without reference to any guiding rules or principles. Quixtar Inc.


                                              4
v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The fact that a trial

court may decide a matter within its discretion in a different manner than an appellate

court in a similar circumstance does not demonstrate an abuse of discretion. Downer,

701 S.W.2d at 242. And, we will affirm an order of dismissal if it was proper under any

legal theory. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010,

no pet.).


       In conducting our review, we accept as true the factual allegations in an inmate’s

petition and review the types of relief and causes of action set out therein to determine

whether, as a matter of law, the petition stated a cause of action that would authorize

relief. Id. A claim has no arguable basis in law if the facts alleged are wholly incredible

or it relies on an indisputably meritless legal theory. Williams, 298 S.W.3d at 339.


       ANALYSIS

       The trial court dismissed Boyd’s suit and in doing so, entered the following findings:


       (1) In 2014, [Boyd] was convicted in Cause No. 24,143-A in the 47th District
           Court of Randall County, Texas, pursuant to a guilty plea.

       (2) [Boyd] is currently an inmate of the Texas Department of Criminal
           Justice, Institutional Division, and is housed at the Jordan Unit;

       (3) [Boyd] appears to be indigent;

       (4) The “Complaint” filed herein presents a series of recitations of some
           general principles of law, but fails to appropriately state any cause of
           action;

       (5) The claim’s realistic chance of success is slight, the claim has no
           arguable basis in law, and it is clear that [Boyd] cannot prove facts in
           support of the claim; and


                                             5
       (6) This complaint is frivolous as described in Section 14.003, Civil Practice
           and Remedies Code.

       Boyd has made numerous attempts in this court to re-litigate his robbery conviction

in trial court cause number 24,143-A, a charge to which he entered a plea of guilty. See

Boyd v. State, No. 07-14-00245-CR, 2014 Tex. App. LEXIS 8445, at *1-2 (Tex. App.—

Amarillo Aug. 1, 2014, no pet.) (mem. op., not designated for publication) (dismissing

appeal from the robbery conviction based on the Trial Court’s Certification of Defendant’s

Right of Appeal after he pleaded guilty and voluntarily, knowingly, and intelligently waived

his right to appeal); In re Boyd, No. 07-15-00209-CV, 2015 Tex. App. LEXIS 7156, at *1

(Tex. App.—Amarillo July 10, 2015, orig. proceeding) (mem. op.) (denying mandamus

relief on request to void judgment of conviction in trial court cause number 24,143-A);

Boyd v. Love, 07-17-00081-CV, 2017 Tex. App. LEXIS 9579, at *8 (Tex. App.—Amarillo

Oct. 11, 2017, pet. denied) (mem. op.) (affirming trial court’s dismissal of Boyd’s suit

alleging a conspiracy in his robbery case by the trial judge, Love, and his common law

spouse).


       Boyd’s underlying suit is substantially similar to some of his previous suits and

arises from the same operative facts that resulted in his robbery conviction. The addition

of Officer Jones as a defendant in the underlying suit is a novelty. Additionally, Boyd’s

claim is based on an indisputably meritless legal theory—a conspiracy to deprive him of

his due process rights in his robbery conviction. Boyd voluntarily pleaded guilty to the

robbery charge and his appeal from the conviction that followed was dismissed based on

his plea and his voluntary waiver of appeal. Furthermore, his complaint does not state a

cause of action that would authorize relief. Consequently, the trial court did not abuse its



                                             6
discretion in dismissing Boyd’s complaint. Issues one and two are overruled. Issue three

complaining of his discovery requests is rendered moot.


      CONCLUSION

      The trial court’s Order Dismissing “Due Course of Law Complaint” is affirmed.




                                               Patrick A. Pirtle
                                                   Justice




                                           7
