William Casey v. The State of Texas--Appeal from County Court at Law No. 6 of Travis County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-94-00245-CR

Case Date: 10/09/1996

Plaintiff: Thomas Ritchie McBride

Defendant: Lewis Saunders, et al--Appeal from 52nd District Court of Coryell County

Preview:Thomas Ritchie McBride v. Lewis Saunders, et al-Appeal from 52nd District Court of Coryell County
McBride v. Saunders /**/ NO. 10-90-206-CV

IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO

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THOMAS RITCHIE McBRIDE, Appellant v.

LEWIS SAUNDERS, ET AL, Appellees

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From 52nd Judicial District Court Coryell County, Texas Trial Court # 25,2349

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file:///C|/Users/Peter/Desktop/opinions/PDFs1/283.html[8/20/2013 7:06:16 PM]

OPINION

******* Appellant, a prison inmate, filed a pro se petition against Lewis Saunders, Jeffrey Townsend and Raul Mata, corrections officers, alleging assault and battery, official oppression, duress, deprivation of his rights and privileges as a prisoner, and trespass. The petition was accompanied by an affidavit of inability to pay costs. Before the defendants were served with process, the court dismissed the case with a finding that "the action's realistic chance of success is slight." Appellant challenges the dismissal in two points on appeal. The order of dismissal will be affirmed. When an affidavit of inability to pay costs is filed, the court may dismiss the suit before service of process if the "action's realistic chance of ultimate success is slight." Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1) (Vernon Supp. 1991). A dismissal will not be disturbed on appeal unless there was an abuse of discretion. Johnson v. Lynaugh, 766 S.W.2d 393, 394-95 (Tex. App.--Tyler 1989), pet. denied, 796 S.W.2d 705 (Tex. 1990). Appellant admits in his pleading that he refused to obey an order from a correction officer to return to his cell; that he left the cell area and refused to halt when ordered by a correction officer; that two correction officers had to use force to apprehend and subdue him; that he participated in a disciplinary hearing where he was represented by counsel and had the opportunity to call witnesses on his behalf; and that he was punished by 15 days in solitary confinement and 180 days of lost "good time." The defendants in Appellant's suit are the two correction officers who subdued him and the hearing officer. Appellant argues in point one that the court abused its discretion when it dismissed the case. After reviewing the allegations in the petition, we cannot say that the court abused its discretion when it held that Appellant's realistic chance of success was slight and dismissed the appeal. Accordingly, point one is overruled. Appellant's second point is that the court erred when it failed to enter findings of fact and conclusions of law in support of the judgment. He relies on Rules 296 and 297 of the Rules of Civil Procedure, which provide that when a case is tried before the court any party may request findings of fact and conclusions of law, and that the court shall enter its findings and conclusions within twenty days of a timely request. See Tex. R. Civ. P. 296, 297. Rules 296 and 297 are inapplicable because the case was never tried. Point two is overruled and the order of dismissal is affirmed. BOB L. THOMAS Chief Justice

Before Chief Justice Thomas and Justice Vance (Justice Cummings not participating) Affirmed Opinion delivered and filed April 25, 1991 Do not publish

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