


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00146-CV
 
BMTP Holdings, L.P.,
                                                                                    Appellant
 v.
 
City of Lorena,
                                                                                    Appellee
 
 
 

From the 170th District
Court
McLennan County, Texas
Trial Court No. 2008-1516-4
 

STATEMENT OF RECUSAL

 




            I hereby recuse myself from
further participation in this case.
 
                                                                                    _____________________________
                                                                                    FELIPE REYNA
                                                                                    Justice
 
                                                                                    Date:
________________________
 
 


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O P I N I O N
                                                                                                    

      Appellant Fuller appeals from an order of the trial court dismissing his pro se informa
pauperis action as frivolous and malicious.
      Appellant, an inmate of the Texas Department of Criminal Justice - Institutional Division 
(TDCJ-ID) at the Hughes Unit in Gatesville, brought this action against Ms. Murkett, unit
mailroom supervisor at the Hughes Unit, and the District Review Committee, TDCJ-ID, to require
the Hughes Unit to deliver to him a package of stationery items
 mailed to him by Magic Video
and Office Supply (MVOS) of Brownwood, Texas.  The Hughes Unit mailroom refused to deliver
the package, and Appellant appealed to the Director's Review Committee (DRC).  The DRC
upheld the Unit level's decision.  Appellant, in this action, sought judicial review of the DRC
decision, as well as a restraining order to prevent the Unit mailroom from destroying the items
which had been mailed to him.
      The trial court dismissed Appellant's suit pursuant to Texas Civil Practice & Remedies Code
§ 13.001, finding "such cause of action frivolous and malicious because the claim stated therein
has no arguable basis in law or in fact.  In this regard the court finds: Failure to state a cause of
action."
      Appellant appeals, asserting that the trial court erred in finding his petition failed to state a
cause of action and in dismissing his case.  Magic Video and Office Supply (MVOS) mailed
Appellant a package containing stationery items.  The Hughes Unit mailroom refused to deliver
the package to Appellant asserting "[MVOS] not a legitimate business, not an authorized vendor
of stationery or publications."  Appellant sought review by the Director's Review Committee. The
DRC upheld the decision of the Hughes Unit.  Appellant filed this case seeking judicial review of
the DRC decision as well as for a restraining order to prevent destruction of his package.
      The DRC, in affirming the Unit's action, stated:  "The package was denied because it was
received in contradiction to the correspondence rules; several irregularities were found.  The
invoice indicated the items were paid for by your Inmate Trust Fund; however, records do not
reflect a withdrawal has been made from your trust fund account payable to Magic Video and
Office Supply.  In addition, when the mail system coordinator called the number on the invoice,
it was not answered by a business, and the mail system coordinator determined that [Appellant's]
brother resides at the address indicated for MVOS."
      Correspondence Rule 39.61 of TDCJ-ID provides:
            Packages may not be sent to inmates by individuals.  TDC will permit the
delivery of packages of stationery from legitimate suppliers and vendors (a
vendor or supplier of stationery need not register in advance with TDC in order
to be a legitimate supplier or vendor) subject to its right of inspection.  Packages
of publications may be sent to inmates by publishers or publication suppliers,
including bookstores . . . . "
      Appellant pled that MVOS was a legitimate stationery business owned by his twin brother in
Brownwood and operated out of his brother's house, and that Appellees acted arbitrarily in
denying him the stationery items mailed to him by MVOS.

      We sustain Appellant's contention.  We reverse the trial court's order of dismissal and remand
Appellant's suit to the trial court.
 
                                                                               FRANK G. McDONALD
                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,
      Justice Vance, and
      Chief Justice McDonald (Retired)
Reversed and remanded
Opinion delivered and filed October 25, 1995
Do not publish 
