                                   NO. 07-03-0315-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   JUNE 27, 2005
                          ______________________________

                                ROBERT RORY HOHN,

                                                                      Appellant
                                             v.

                                  MELODY GILMORE,

                                                                      Appellee
                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 91,082-E; HON. ABE LOPEZ, PRESIDING
                         _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Robert Rory Hohn, an indigent inmate, appeals from an order dismissing (with

prejudice) his negligence suit against Melody Gilmore, the District Clerk of Liberty County.

Hohn sued Gilmore due to her purported failure to file mark and assign a case number to

various documents sent Gilmore. The trial court dismissed the suit, concluding that the

petition failed to state a cause of action. Before us, Hohn asserts that the trial court’s

decision constituted an abuse of discretion. We affirm the judgment of the trial court.
       Trial courts have broad discretion in determining whether claims filed by indigent

inmates should be dismissed. Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex.

App.–Tyler 1994, no writ). So too may they dismiss such a claim, either before or after

service of process, if they find the suit to be frivolous. TEX . CIV . PRAC . & REM . CODE ANN .

§14.003(a)(2) (Vernon 2002). And, in determining whether a claim is frivolous, a trial court

may consider whether the allegations have any arguable basis in law or in fact. Id. at

§14.003(b)(2). Yet, when dismissal occurs without the court holding an evidentiary hearing,

as it did here, we are limited to reviewing whether the suit had any arguable basis in law.

Smith v. Texas Dep’t of Crim. Justice - Institutional Div., 33 S.W.3d 338, 340 (Tex.

App.–Texarkana 2000, pet. denied); Sawyer v. Texas Dep’t of Crim. Justice, 983 S.W.2d

310, 311 (Tex. App.–Houston [1st Dist.] 1998, pet. denied).1 With this said, we turn to the

situation before us.

       Hohn contended, via his original petition, that Gilmore acted negligently and thereby

denied him his constitutional right to access the courts. This occurred when she neglected

to file mark and assign a cause number to the documents he sent. However, negligent

conduct is not actionable as a violation of the United States Constitution. See e.g., Daniels

v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 666, 88 L.Ed.2d 662, 663 (1986) (refusing

to recognize constitutional torts sounding in negligence); Williams v. Scott, No. 04-99-0830-

CV, 2000 Tex. App. LEXIS 7731 at 4 (Tex. App.–San Antonio November 15, 2000, no pet.)

(not designated for publication) (stating that injuries arising from a prison guard’s negligent

conduct are not actionable under 42 U.S.C. §1983). So, to the extent that he invoked the



       1
           We construe an action having no arguable basis in law as also failing to state a cause of action.

                                                       2
United States Constitution to recover for injuries arising from negligent conduct, the claim

is frivolous.

       Nor can we say that he fares any better viz his claim implicating the Texas

Constitution. It is based upon the open courts provision in art. I, §13 of that document.

Assuming arguendo that the provision affords one a private right of action for damages, see

City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995) (holding that not every

provision of the Texas Constitution grants one a private right of action for damages), it has

been held that the clause applies only to statutory restrictions upon a legitimate common

law cause of action. Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 410 (Tex.

1997). Given this, Hohn must illustrate that some legislative edict impeded his access, but

he does not.       Instead, he averred that the negligent actions of Gilmore did so.

Consequently, his allegations also fail to aver a recognizable claim under art. I, §13 of the

Texas Constitution.

       As for the allegation that the clerk violated Rule 24 of the Texas Rules of Civil

Procedure, Hohn proffers neither authority nor substantive argument suggesting that the

rules of civil procedure create private causes of action for damages. Given this dearth of

authority and analysis, he waived any claim founded upon Rule 24. In re Williams, 998

SW.2d 724, 730 (Tex. App.–Amarillo 1999, no pet.).

       Because Hohn did not establish that his petition averred a viable cause of action,

the trial court was entitled to treat his allegations as frivolous and dismiss the suit. TEX . CIV .

PRAC . & REM . CODE ANN . §13.001(a)(2) (Vernon 2002) (stating that a court “may dismiss

the action on a finding that . . . [it] is frivolous or malicious”); Doyle v. Lucy, No. 14-03-0039-

CV, 2004 Tex. App. LEXIS 2790 at 9 (Tex. App.–Houston [14th Dist.] 2004, March 30, 2004,

                                                 3
no pet.) (stating that the trial court need not provide the inmate opportunity to amend his

petition to state a viable claim before dismissing it). Accordingly, we modify the order to

illustrate that the dismissal was without prejudice, see Mullins v. Estelle High Security Unit,

111 S.W.3d 268, 273-74 (Tex. App.–Texarkana 2003, no pet.) (modifying the dismissal to

be without prejudice when the frivolous allegations may be susceptible to correction), and

affirm it as modified.



                                                  Brian Quinn
                                                  Chief Justice




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