Affirmed and Memorandum Opinion filed February 11, 2020.




                                           In The

                        Fourteenth Court of Appeals

                                  NO. 14-18-00848-CV

                      ARTIS CHARLES HARRELL, Appellant

                                            V.
                                  KIM OGG, Appellee

                       On Appeal from the 189th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2018-27455

                     MEMORANDUM OPINION

      Appellant Artis Charles Harrell, who is currently incarcerated, requested the
Harris County District Attorney, appellee Kim Ogg, to produce files in Ogg’s
possession, which Harrell wanted to use in a legal malpractice case against his
former criminal defense attorney. After Ogg denied the request under a statute in
the Government Code that gives her discretion to do so,1 Harrell filed this suit


      1
          See Tex. Gov’t Code § 552.028.
against Ogg, seeking a declaration that Government Code section 552.028 is
unconstitutional. Ogg moved to dismiss Harrell’s suit as frivolous because it
lacked an arguable legal basis. The trial court granted Ogg’s motion and dismissed
Harrell’s suit. Harrell appeals. Because we agree that Harrell’s suit lacks an
arguable basis in law, we affirm the trial court’s judgment.

                                          Background

       Harrell is currently serving a ninety-nine-year sentence for aggravated
robbery. See Harrell v. State, No. 14-05-00753-CR, 2006 WL 1140418, at *1
(Tex. App.—Houston [14th Dist.] Apr. 27, 2006, pet. ref’d) (mem. op., not
designated for publication). While in prison, Harrell requested information from
Ogg under the Texas Public Information Act (“TPIA”). See generally Tex. Gov’t
Code ch. 552. According to Harrell, he needed the requested records to prosecute
a civil malpractice case against the attorney who represented him during his
criminal trial.

       Ogg denied Harrell’s requests pursuant to Texas Government Code section
552.028. As discussed below, that statute provides governmental bodies discretion
in choosing to comply with requests for public information from an inmate such as
Harrell. See Tex. Gov’t Code § 552.028(a).

       Harrell then sued Ogg, seeking a declaration that section 552.028 is
unconstitutional as applied.2 Ogg moved to dismiss Harrell’s declaratory relief

       2
         In his amended petition, Harrell also named as a defendant Texas Attorney General Ken
Paxton, seemingly in response to Ogg’s assertion in a plea to the jurisdiction that the trial court
lacked jurisdiction because Harrell “failed to name the Texas Attorney General as a party, as
required by Section 37.006 of the Texas Civil Practice & Remedies Code.” Section 37.006
requires that, in any proceeding challenging the constitutionality of a statute, the attorney general
must “be served with a copy of the proceeding and is entitled to be heard.” Tex. Civ. Prac. &
Rem. Code § 37.006(b). There is no indication in the record that citation was ever served on
Paxton, but in any event, Paxton would not have been a necessary party to this suit. See, e.g.,
Nabelek v. Bradford, No. 01-02-00359-CR, 2003 WL 1937200, at *2 (Tex. App.—Houston [1st
                                                 2
claim, contending it was frivolous under Texas Civil Practice and Remedies Code
section 14.003. See Tex. Civ. Prac. & Rem. Code § 14.003 (governing dismissal
of claims in inmate litigation). The trial court granted Ogg’s motion and dismissed
Harrell’s suit.

       Harrell appeals and contends in his only relevant issue that the trial court’s
dismissal order is erroneous.3

                                             Analysis

A.     Standard of review for inmate-litigation dismissals

       Ogg moved to dismiss Harrell’s claim as frivolous under chapter 14 of the
Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code
§ 14.003(a)(2). Chapter 14 applies to inmate-filed actions in which the inmate has
filed an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac.
& Rem. Code § 14.002.               Harrell filed an unsworn declaration in this case.
Accordingly, chapter 14 applied to Harrell’s suit and applies to this appeal. See id.

       Under chapter 14, a trial court may dismiss an inmate’s claim if the court
finds that the claim is frivolous or malicious.                   See id. § 14.003(a)(2).           In
determining whether a claim is frivolous or malicious, the court may consider
whether the claim has no arguable basis in law or fact. See id. § 14.003(b)(2).
Because the trial court dismissed Harrell’s claim as frivolous under section 14.003
without holding an evidentiary hearing, this court can affirm the trial court’s ruling
only if Harrell’s claim has no arguable basis in law. Retzlaff v. Tex. Dep’t of

Dist.] Apr. 24, 2003, no pet.) (mem. op.) (“Texas courts have held that section 37.006 does not
require that the Attorney General be made a party defendant.”).
       3
          Harrell contends in a second issue that the trial court erred in dismissing his suit for lack
of subject-matter jurisdiction. The record makes clear that jurisdiction was not the basis for the
trial court’s dismissal order, and therefore Harrell’s issue presents nothing for our review. We
overrule Harrell’s second issue.

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Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied).    A claim has no arguable basis in law if the claim is based on an
indisputably meritless legal theory. See Nabelek v. Dist. Att’y of Harris Cty., 290
S.W.3d 222, 228 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). We review
a dismissal under chapter 14 for an abuse of discretion, but we review de novo the
issue of whether a claim has an arguable basis in law. Retzlaff, 94 S.W.3d at 653.

B.     Application

       Harrell seeks a declaration that Texas Government Code section 552.028 is
unconstitutional.     Section 552.028, captioned “Request for Information from
Incarcerated Individual,” provides that “[a] governmental body is not required to
accept or comply with a request for information from . . . an individual who is
imprisoned or confined in a correctional facility.”                      Tex. Gov’t Code
§ 552.028(a)(1). This statute therefore affords governmental bodies, such as the
Harris County District Attorney’s Office,4 discretion in determining whether to
comply with public information requests from inmates. See, e.g., Nabelek, 290
S.W.3d at 225; Harrison v. Vance, 34 S.W.3d 660, 662-63 (Tex. App.—Dallas
2000, no pet.) (“We join our sister courts in holding disclosure of information is
discretionary when that information is requested by an individual imprisoned or
confined in a correctional facility, regardless of whether such information pertains
to the individual requesting it.”).

       In his amended petition, Harrell argued that section 552.028 is
unconstitutional for several reasons. First, the statute violated Harrell’s “absolute
right” to secure documents from a non-party under the Texas Rules of Civil


       4
         See Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996) (“Accordingly, we affirm the
court of appeals’ holding that the Harris County District Attorney’s office is a ‘governmental
body’ within the meaning of the Open Records Act and is, therefore, subject to its provisions.”).

                                               4
Procedure. Further, the statute violated Harrell’s rights under the Equal Protection
and Due Process clauses of the United States Constitution by unlawfully
discriminating against Harrell as an incarcerated person and by depriving Harrell
access to public information that is available to non-incarcerated persons. See U.S.
Const. amends. V & XIV.

       We first address Harrell’s contention that he has an absolute right to
discovery from a non-party in civil litigation.              Although Harrell does not
specifically identify any constitutional provision or amendment that section
552.028 violates in this regard, we construe his pleadings and briefing liberally to
presume that his due process argument applies to this contention.

       We begin by noting that this court and others, when considering the
constitutionality of section 552.028, have concluded that an incarcerated individual
“has no constitutionally protected right to [TPIA] information as a matter of due
process.” Nabelek v. Bradford, 228 S.W.3d 715, 718 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied); see also Trevino v. State, No. 03-12-00060-CV, 2013 WL
4056193 (Tex. App.—Austin Aug. 7, 2013, no pet.) (mem. op.) (relying on
analysis in Nabelek to overrule an incarcerated individual’s due-process challenge
to the constitutionality of section 552.028).

       Regardless, there is no conflict between the Texas Rules of Civil Procedure
and Government Code section 552.028. Under rule 205.1, a party may compel
discovery from a non-party—that is, a person who is not a party or subject to a
party’s control—by serving a subpoena compelling, inter alia, a request for
production of documents.5 See Tex. R. Civ. P. 205.1(d). Thus, if Harrell seeks


       5
         A party may also compel certain discovery from a non-party by obtaining a court order
under rules 196.7, 202, or 204, but none of those rules are implicated here: rule 196.7 governs
requests or motions for entry upon property; rule 202 governs depositions before suit or to
                                              5
documents from a non-party like Ogg, he may have the right to subpoena those
documents in civil litigation. But that discovery mechanism is governed under the
rules of civil procedure, not the rules governing public information requests. We
discern no friction between section 552.028’s grant of discretion to governmental
bodies responding to information requests from incarcerated individuals and a civil
litigant’s right under rule 205.1 to subpoena documents from a non-party.

         We next address Harrell’s as-applied constitutional arguments. This court
has already squarely rejected Harrell’s equal protection argument:

         Prisoners are not a suspect class and thus we review their claims under
         the rational-basis test. So long as the statute furthers some legitimate
         state interest, we will uphold its constitutionality. Avoidance of
         unnecessary use of state and other governmental agencies’ employee
         resources is a legitimate goal. . . . Such requests require time and
         attention. It requires little effort of thought to understand the strain on
         public resources were agencies required to comply fully with every
         prisoner’s request for information. . . . [W]e must determine only if
         the Legislature had a legitimate state interest in enacting the law.

Nabelek, 228 S.W.3d at 719 (overruling appellant’s equal protection argument)
(internal citations omitted). And, as already stated, precedent from this court
forecloses Harrell’s due process argument as well. See id. at 718.

         For these reasons, we hold that Harrell’s constitutional rights are not
violated in any of the alleged respects, and thus section 552.028 is not
unconstitutional as applied to Harrell. Because Harrell’s declaratory relief claim
has no arguable basis in law, the trial court did not abuse its discretion in granting
Ogg’s motion to dismiss Harrell’s suit as frivolous. We overrule Harrell’s first
issue.


investigate claims; and rule 204 governs physical and mental examinations. See Tex. R. Civ. P.
196.7, 202, 204.

                                              6
                                    Conclusion

      We affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice

Panel consists of Justices Wise, Jewell, and Poissant.




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