                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                        __________________

                           No. 00-10127
                         Summary Calendar
                        _________________

                       BILLY RAY CINNAMON,

                                              Plaintiff-Appellant,

                               versus

                      WAYNE SCOTT, Director,
              Texas Department of Criminal Justice,
         Institutional Division; CAROLE KEATON RYLANDER,
                 Comptroller of Public Accounts,

                                            Defendants-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (5:99-CV-238-C)
_________________________________________________________________


                            July 24, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     The underlying 42 U.S.C. § 1983 action by Billy Ray Cinnamon

(Texas prisoner #615926) claims a violation of the Takings Clause

of the Fifth Amendment because he is not paid interest accruing on

his inmate trust account.   He appeals the dismissal of his action




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
as frivolous.    We review for abuse of discretion.            E.g., Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999).

     We find such an abuse, because the evidentiary bases for the

district court’s opinion—that the funds in Cinnamon’s account do

not generate interest and that his account is voluntary—do not

support finding the suit frivolous.            The statement in the Texas

Department of Criminal Justice Offender Orientation Handbook that

the trust fund does not pay interest is beside the point, for it

does not address whether such accounts earn interest.

     Nor are we persuaded by the Texas Attorney General’s Opinion,

because it antedates the passage of a Texas statute requiring that

the assets held in such inmate accounts be deposited either in the

general revenue fund of the state treasury, in trust with the

comptroller,    or   in   a   local   bank    account   on   approval   by   the

comptroller.     See TEX. GOV’T CODE ANN. § 493.0082 (West 1998).

Further discovery is necessary to ascertain whether the funds earn

interest.

     Finally, Cinnamon has presented a viable claim as to whether

the option to use an outside account renders any loss of a property

interest a voluntary one.       He claims he is not allowed to use funds

in an outside account for any prison purpose.                Depending on the

expected length of his incarceration and his ability to transfer

funds from an outside account, opening such an account might not be

a genuine alternative.


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      Because    we   conclude    that   the   district    court   abused   its

discretion in dismissing the instant suit as factually groundless,

it   is not     necessary   to   reach   Cinnamon’s    contention    that   the

screening     provisions    of   28   U.S.C.   §   1915A   unconstitutionally

restrict his access to federal courts.                In any event, it is

meritless.      See Martin v. Scott, 156 F.3d 578, 580 n.2 (5th Cir.

1998), cert. denied, ___U.S.___, 119 S. Ct. 2405 (1999).

                      VACATED AND REMANDED FOR FURTHER PROCEEDINGS




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