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                   SUPREME COURT OF ARKANSAS.
                                       No.   CV-16-387


ALLEN LYNN PENN                                 Opinion Delivered October 19, 2017
                               APPELLANT
                                                PRO SE APPEAL FROM THE
V.                                              PULASKI COUNTY CIRCUIT
                                                COURT
RICHARD GALLAGHER, ASSISTANT                    [NO. 60OT-50-6]
DIRECTOR, AND KERMIT B.
CHANNELL, EXECUTIVE DIRECTOR, HONORABLE TIMOTHY DAVIS
ARKANSAS STATE CRIME           FOX, JUDGE
LABORATORY
                     APPELLEES
                               REVERSED AND REMANDED.


                            RHONDA K. WOOD, Associate Justice

        Appellant Allen Lynn Penn is an inmate incarcerated in the Arkansas Department of

 Correction. He appeals the circuit court’s denial of his pro se petition for leave to proceed

 in forma pauperis in a civil matter. We reverse and remand.

        In 2014, Penn wrote the Arkansas State Crime Lab seeking release of certain

 documents from his criminal case file and the confirmation by the Arkansas State Crime

 Laboratory of the existence of certain evidence—some bloody glass and fingerprints that

 Penn believed had been collected by the police investigating the crime.1 Assistant Director

 Gallagher denied this request. Subsequently, Penn sought to proceed as a pauper so that he

 could file a pro se petition for writ of mandamus to obtain the evidence. The circuit court

 denied Penn’s in forma pauperis petition without elaboration. Penn appeals.


        1
           This court affirmed Penn’s conviction on a capital-murder charge and his sentence
 to life imprisonment without parole. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).
                                     Cite as 2017 Ark. 283

       Our review of a decision to grant or deny a petition to proceed in forma pauperis is

abuse of discretion. Jordan v. State, 273 Ark. 75, 616 S.W.2d 480 (1981). The trial court’s

factual findings in support of its exercise of discretion will not be reversed unless clearly

erroneous. Johnson v. State, 2017 Ark. 106, 515 S.W.3d 116. Rule 72 of the Arkansas Rules

of Civil Procedure conditions the right to proceed in forma pauperis in civil matters upon

indigency and the circuit court’s satisfaction that the alleged facts indicate “a colorable cause

of action.” Ark. R. Civ. P. 72(c) (2016). Rule 72 requires a circuit court to make findings

of fact if it determines a petitioner is not indigent. Id.

       The circuit court did not make findings of fact that Penn was not indigent. It is

uncontested that he had no funds in his inmate-trust account. Thus, the parties adopt the

position that the circuit court denied relief after determining Penn failed to state a colorable

cause of action. “A colorable cause of action is a claim that is legitimate and may reasonably

be asserted given the facts presented and the current law or a reasonable and logical extension

or modification of it.” Watts v. Kelley, 2017 Ark. 189, at 5, 520 S.W.3d 249, 252.

       Whether Penn ultimately can succeed in a writ of mandamus action initially depends

on which version of Arkansas Code Annotated section 12-12-312 applies. Penn argues the

crime lab must follow our precedent in Davis v. Deen, 2014 Ark. 313, 437 S.W.3d 694 (per

curiam), which interpreted Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii) (Repl.

2003). However, when Penn made his request to the crime lab, a new version of the statute

was in place; Arkansas Code Annotated section 12-12-312 (Supp. 2013). On appeal,

appellees base their position on Arkansas Code Annotated section 12-12-312(a)(1)(B)(ii)

(Repl. 2016).

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       Regardless of which statutory version is applicable, Penn’s petition asserts facts to

support a colorable claim for relief and is worthy of development at the circuit court level.

Given his indigency status and his petition sufficiently stating a colorable cause of action,

the circuit court’s denial of Penn’s petition to proceed in forma pauperis was clearly

erroneous.

       Accordingly, we reverse and remand.

       Reversed and remanded.

       Allen Lynn Penn, pro se appellant.

       Doralee Chandler, General Counsel, for appellees.




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