### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00060- CV

Raul Adam Tre vino, App ellant

v. The State of Texas; Gr eg Abbott, At torney G eneral of Texas; and Michel F . Ke nnell, T he Attor ney Ge neral of Texas Public Inf orm ation Coordinator’s Off ice, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0004 0, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Raul Adam Trevino, an incar cer ated inmate, sued the St at e o f Texas, Attorney Ge n er al Gre g Abbott, and state employ ee Michel F. Kenne ll (collec tively , the State), alleg ing that the State improperly denied a reque st for information under the Texas Public I nformation Act (PI A), Tex. Gov’ t Code §§ 552.001-.353. In response , the State filed a combined (1) moti on to dismiss the l awsuit based on section 552.028 of the PI A, which a uthorizes the State
to deny a PI A reque st from an incar cer ated in d i v i d u al , an d (2) plea to the jurisdiction based on

sovere ign immunit y . See id. § 552.028 (g iving g overnme ntal body discretion t o acc ept or deny reque st for information from incar cer ated individual). The trial court g rante d the State’s motion and plea and dismiss ed Trevino’ s claims with prejudice

. See Tex. Civ. Prac. & Rem. C o d e § 14.003 (trial court may dismiss in forma pauper is inmate litigation t h at is frivolous or malicious). On appea l, Trevino prese nts nine issues in which he g ener ally asser ts that (1) PI A sections 552.0055 and552.022 pree mpt section 552.028, (2) section 552.028 deprive s him of hi s constitutional ri gh t s to

due proce ss, equal protec tion, and acc ess to the courts, and (3) the trial court err oneously dismiss ed his claims with prejudice without allowing him an opportunity to amend his petition. We will affirm.

F ACTUAL AND P ROCEDURAL BACK GR OUND

I n 1995 Trevino pleade d g uilty to possession of a prohibited wea pon and three other felonies and was sentenc ed to 30 y ear s in prison. See Tex. Penal Code § 4 6

. 0 5

. He is prese ntly 1 incar cer ated in the Eastham Unit of the Texas Depa rtment of Criminal J ustice sy stem. Although he initially pleade d g uilty , Trevino now contends t h at h is appointed trial counsel was ineffe ctive for failing to c halleng e the constitutionalit y of the prohibited-we apons statute; he states that he intends to file a pe tition for writ of habe as cor pus on that basis. To support a collater al attack of his conviction on in ef fe ct i ve-a ssistance g rounds, Trevino made a reque st to the Attorney Gene ral’s office under the PI A, seeking the identification of (1) briefs, interpre tations, and policy statements that have been filed or made by the Offic e o f the Attorney Gene ral ref

lecting the g overnme nt’s p o s it ion on the constitutionalit y of state laws restric ting the possession of wea

pons and (2) policy statements and interpre tations made or adop t ed b y t he Attorney Gene ral’s off

i ce re lated to Gover

nor Rick Perry ’s views on the rig ht of sece ssion “as a

Although the prohibited-we apons st atute has been amended since Tre v i n o ’s co nviction, 1 we cite the curr ent version of th e s t atute for convenie nce beca use the substantive chang es to the statute are immaterial to the issues in this appeal. 2viable option in the fac e of continued fede ral intrusion.” On behalf of the Attorney Gene ral’s Public 2 I nformation Coordinator’s Offic e, Kenne ll issued a written response declining Trevino’ s reque st for information based on section 552.028 of the PI A, which provides that “[a] g overnme ntal body is not require d to acc ept or comply with a reque st for information [under the PI A] from: (1) an individual who is imprisoned or conf ined in a cor

rec tional fac ility ; . . . .” Tex. Gov’t Code § 552.028. I n response , Trevino rea sserted his reque st fo r information and argued that he was entitled to rec eive information conce rning the exis tence of the reque sted documents based on (1) PI A section 552.0055, which states that “[a] subpoena duces tecum or a reque st for discovery that is issued in compliance with a statute or a rule of civil or criminal proce dure is not considere d to be a reque st for information under [t he PI A],” and (2) PI A section 552.022, which lists examples of cate g ories of

Specifica lly , Trevino ask ed t h e S t ate to disclose the exis tence of documents in the 2 following cate g ories: 1. briefs filed in the publ ic courts “ar g uing for the I ndividual Right of ‘the people’ t o keep a nd bear arms in furthe r[-ance ] of the Natura l L aw of Self-Prese rvation”; 2. policy statements or interpre tations adopted or issued by the Attor n ey Gene ral’s Offic e conce rning the rig ht to bear arms, self-pr eser vation, the extent of natura l law, the g overnme nt’s police power s in relation to the fore g oing, and fundame ntal rig hts; 3. policy statements or interpre tations on t he orig inal intent of Texas Constit ution Article 1, §23; 4. the exis tence of information pursuant to Texas Gover nment Code section 5 52.103 “conc erning informatio n g arne red from third parties” bear ing on the rig ht to bear arms, self-pr eser

vation, the extent of natura l law, the g overnme nt’s police power s in relation to the foreg oing, a nd fundame ntal rig hts; 5. “a n y p olicy statement or interpre tation that has been adopted or issued by t h e Attorney General’s Offic e conce rning Texas’s ‘rig ht of sece ssion’ as espoused by Gover nor Rick Perry [i n 2009], as a viable op t i o n i n the fac e of continued fede ral intrusion”; and 6. “any other information pursuant to the previous sections, subsections, and Attorney Gene ral Opinions, etc[.]” 3i n fo rm ation that “ar e public information and not excepted from require d disclosure unless m ad e

confide ntial under [t he PI A] or other law.” Id. §§ 552.0055, .022. Trevino stated that he “wa s mere ly reque sting a

bout [ sic] the ‘ex istence’ of documents and information of the na ture [he] had listed[ ;]
not for actua l copies of the documents and information themselves.” Kenne ll once ag ain issued a letter de clining T revino’s r equest ba sed on sec tion 552.028.

Shortly there afte r, Trevino, proce eding pro se and in forma pauper is, filed suit ag ainst the State, asser

ting that the reque sted information was essential to allow him to succe ssfully prosec ute

a writ of habea s corpus alleg ing ineffe ctive assistance of counsel and that the State’s improper ref usal
to rele ase the reque sted information entitled him to injunctive and monetary relief under the Fe dera l Tort Claims Act, 42 U.S.C. § 1983, and the PI A. Among other reme dies, Trevino reque sted that the trial court (1) decla

re section 552.028 unconstitutional, (2) order the State to produce the re quested documents at its own expense or by debiting Trev i n o ’s p ri s o n trust acc ount as funds are made available to him, (3) impose a continuing obligation on the State to produce responsive documents, and (4) awa

rd him $25,000 in monetary , punitive, compensatory , and other damag es. The State filed a motion to dismiss Trevino’ s lawsuit as frivolous on the g round that section 552.028 authoriz es the State to decline Trevino’ s reque st and the statute is not unconstitutional. See Tex. Civ. Prac. & Rem. Code § 14.003 (authorizing court to dismiss claim upon finding that “the claim is frivolous or malicious” and providing fac tors court may consider in making that deter mination); see generally id. § 14.001-.014 (imposing restric tions on indige nt prisoner litigation). The State also filed a plea to the jurisdiction based on sovere ign immunit y from Trevino’ s claim for money d am ages and his claim for relief under section 1983. The trial court g rante d the

4motion to dismiss and the plea to the jurisdictio n an d dismiss ed Trevino’ s claims with prejudice

.

Trevino subsequently filed (1) an amende d petition to addre ss jurisdictional defic iencies asser ted in the State’s plea t o the jurisdiction and (2) a motion for new trial. The motion for new trial was

overr uled by operation of law, and this appe al followed. On appea l, Trevino asser

ts nine appellate issues, which can be summarized as arguing that: (1) PI A sections 552.0055 and 552.022 rende r section 552.028 inapplica b l e, (2 ) s ection 552.028 is unconstitutional beca use it deprive s him o f information that is essential to support his ineffe ctive-a ssistance-of

-counse l claim, and (3) the trial court err oneously dismiss ed his claims with prejudice without allowing him an oppor tunity to amend his petition.

DISCUSSIO N As a threshold matter, the State asser ts that we are without jurisdiction to consider Trevino’ s appea l beca

use his notice of appea l was not timely filed. See Tex. R. App. P. 25(b) (“The filing of a notice of appea l by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgme nt or order appea led from.”)

. A notice of appea l must be filed within thirty day s afte r t he judgment i s signe d; howeve r, t he deadline may be extended to 90 day s afte r t he judgment is signe d if one of the deadline- extending circ umstances listed in Texas Rule of Appellate Procedur e 26.1(a) has occur

red, including the timely filing of a motion for new trial. See Tex. R. App. P. 26.1(a) (allowing 90 day s for filing notice of appea l if any party timely files motion for new trial, motion to modify judgme nt, motion to reinstate under Texas Rule of Civil Procedur e 165(a) , or reque st for finding s of fac t a

nd conclusions of law). The judgme nt dismiss ing Trevino’ s claims was signe d on October 20, 2011. Trevino’ s notice of appea l was not filed until J anuar y 13, 2012. The issue
5prese nted is whether Trevino’ s intervening motion for new trial was timely filed and, thus, eff ective
to extend the deadline to p er fe ct h i s appeal. I n his motion for new trial, Trevino cer tified that he place d the motion in the prison mailbox sy stem on November 18, 2011, which was within the time period for timely fili n g a m o t i o n fo r new trial. Howeve r, the motion for new trial was not file-stampe d by

the district cler

k’s offic e until Dece mber 28, 2011, whic h is not ti mely

. The Tex as S upreme Court has adopted the “prisoner m ailbox rule” for court fi l i ng s by pro se inmates. Enriquez v. Livingston , 400 S.W .3d 610, 621 (Tex. App.—Austin 2013, pet. filed) (citing W

arner v. Glass , 1 35 S.W .3d 681, 684 (Tex. 2004), and Ramos v. Richardson , 228 S.W .3d 671, 673-74 (Tex. 2007)). Under that rule, pleading s filed with the cler k of the court are deeme d filed “at the t ime the prison authorities dul y rec eive the document to be mailed.” W arner , 135 S.W .3d at 684. To invoke the mai l b o x rule, an inmate has the burden of providing “some

measure of proof” reg arding the date that he turned his pleading over to prison authorities for mailing. Ramos , 228 S.W .3d at 673. A rec itation in a cer tificate of service reg arding the date the inmate g ave the documents to prison authorit i es t o mail has been held sufficie nt to satisfy this burden. See id. (“Ramos did ever

y thing nece ssary to comply with the rul es b y p l acing the notices of appea l in the outgoing prison mailbox .”); see also Enriquez , 400 S.W .3d at 621-22

. “[ O]nce an inmate has provided ‘some measure of proof’ that he place d his [pl eading ] in the hands of prison authorities on

or befor e the d at e i t wa s due to be filed, the burden shifts to the State to offe r rebuttal evidenc e.” Enriquez , 400 S.W .3d at 622.

I n the prese nt case , Trevino’ s cer tification that he place d a copy of the motion for new trial in the prison mailing sy stem on November 18, 2011, for mailing to the Travis Count y District

6Clerk is sufficie nt t o i n v o ke the prisoner mailbox rule and shift the burden to the State to submit

rebuttal evi d en ce . S

ee id. at 621-22 (holding that State’s argument that trial court could have disbelieved Enriqu ez b as ed on fac t that motion took longe r than other filings to rea ch trial court without explanation for delay was insufficient to rebut measure of proof that p ri s o ner provided). Although we specific all y o ffe red the State an opportunity to supplement the appellate rec ord with rebuttal evidenc e, the State declined to produce any such evidenc e. See id. at 622-23 (obser ving that 3 prisoner’ s asser

tion of delivery to pr ison a uthorities c an be rea dily disputed by prison rec ords, such

as prison mail logs)

. Acc ording ly , we conclude that T re v i no’s motion for new trial and notice of appea l wer e timely filed and that we have jurisdiction over the merits of Trevino’ s appea l, to which
we now tur

n. As an inmate proce eding in forma pauper is, Trevino’ s suit is g overne d by Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 14.001–.014; see also Thompson v. Henderson , 927 S.W .2d 323, 324 (T ex . App.—Houston [1st Dist.] 1996, no writ). Under this chapte r, a trial court has broad discretion to dismiss an inmate’s suit if it finds that the claim is frivolous or malicious. See Martinez v. Thaler , 931 S.W .2d 45, 46 (Tex. App.—Houston [14t h Dist.] 1996, writ denied) ; see also Lentworth v. Trahan , 981 S.W .2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Tex

. Civ. Prac. & Rem. Code § 14.003(a) (2))

. I n
This Court’s letter to the par ties stated: 3 [T] he parties are reque sted to submit to this Court evidenc e, i n t h e fo rm of aff idavits and rele vant documents, if any , bear ing on the timeliness of appellant Raul Adam Trevino’ s motion for new trial and notice of appea l. I n comply i n g with this reque st, the parties are direc ted to the Court’s rec ent opinion in Enriquez v. L ivingston

. . . , in which we rec og nized that the prisoner

mailbox rule c ould be re butted with prison mail recor ds or log s.

7deter

mining whether a claim is frivolous or malicious, the trial court may consider whether : (1) the claim’s rea listi c chanc e of ultimate succe ss is slight; (2) the claim has no arguable basis in law or in fac t; (3) it is clea

r that the party cannot prove fac ts in support of the claim; o r (4 ) t he claim is substantially

simil ar to a previous claim filed by the inmate beca use the claim arises from the sa me operative fac ts. Tex. Civ. Prac

. & Rem. Code § 14.003(b). A trial court’s dismiss al of an action as frivolous or malicious is subject to revie w under an abuse- of-disc re t i o n s t andard. See Martinez , 931 S.W .2d at 46. A trial court abuses it s discretion if it acts arbitra rily , unrea sonably , or without reg ard to any g uidi n g rules or principles. Ford Motor Co. v. Chacon , 370 S.W .3d 359, 362 (Tex. 2 0 1 2 ) (“[A] buse of discretion .

. . occur s when the trial court rules (1) arbitrar ily , unrea sonably , o r without reg ard to g uiding pr inciples, or (2) without supporting evide nce.” ).

On appea l, Trevino does not dispute that he is incar cer ated or that section 552.028 authorizes the S tate to decline his reque st for information. See Tex. Gov’t C ode § 5 5 2

. 0 28 (g iving g o v e rnmental body discretion to acc ept or deny reque st for information from incar cer ated individual )

. He contends , h o wever, t hat s ection 552.028 is inapplicable beca use section 552.022 and 552.0055 of the PI A independe ntly

require the State to respond to his reque st for information. W e disag ree . First, section 552.022 of the PI A g ener ally lists examples of cate g ories of public i nformation that are available under the Act unless otherwise exempted from disclosure. See id

. § 552.022 (“Without limit ing the amount or kind of information that is public information under this chapte r, the following cate g ories of information are public information and n o t ex cepte d from require d disclosure unless made co n fi d en t i al under this chapte r or other law

. . . .”). I n contra st, section 552.028 specific all y l i m i t s the rig hts of cer tain reque stors to obtain public information as

8define d in section 552.022. Thus, section 552.022 is a g ener al provision conce rning the availability

of public information while section 552.028 is a specific provision limit ing the disclosure require ment. A specia l provision “pre vails as an exception to [a] g ener al provision, unless the g ener al provision is the later enac tment and the manifest intent is that the g ener al provision preva il. ” Id. § 311.026 (“The specia l or local provision preva ils as an exception to the g ener al provision.”). Section 552.028 is a later- enac ted specia l provision. Moreove r, there is no manifest leg islative intent that section 552.022 should preva il over section 552.028’s express t er m s . According ly , section 552.022 does not rende r sec tion 552.028 inapplicable.

Second, section 552.0055 of the Act exempts from the PI A document reque sts made during pending litigation and thus might trump section 5 5 2.028 when it is applicable

. See id. § 552.0055 (“A subpoena duces tecum or request for discovery that is issued in compliance with a statute or rul e of civil proce dure is not considere d to be a reque st for information under this chapte r.”)

. Howeve r, it is not applicable here

. As established by Trevino’ s cer tificate of prior litigation, at the time Trevino made his PI A reque st, there was no pending litigation ag ainst the State and thus there could not have be en a subpoena duces tecum or pendingdiscovery reque st issued in compliance with a statute or rule of civil proce dure. A ccor dingly , section 552.0055 does not a pply

or pree mpt section 552.028 in this case . Moreove r, Trevino is not independe ntly authorized to issue

a su b p o en a. S

ee Tex. R. Civ. P. 176.4 (listing persons who may issue subpoenas)

. We there fore

overr ule Tre vino’s six th and seve nth appellate issues. T re v i no next asser

ts that section 552.028 violates his constitutional rig hts to d u e proce ss, equal prote ction, and ac cess to the courts bec ause it depr ives him of acc ess to information

9that is essential to s u p p o rt a writ of habea s corpus alleg ing that he was deprive d of the eff ective assistance of counsel in his criminal trial beca use appointed co unsel failed to challeng e the prohibited-we apons statute under which he was convicted. All of these constitutional challeng es to section 552.028 have been previously addre ssed and reje cted in Nabelek v. Bradford , 228 S.W .3d 715 (Tex. App.—Houston [14t h Dist.] 2006, pet. denied)

.

I n N a b el ek, a convicted felon made a reque st under the PI A for portions of a fi l e related to the convictions for which he was then incar cer ated. Id. at 717. He asser ted that he neede d the information to support a petition for writ of habea s corpus and application for clemenc y , and he offe red to pay for production of the documents. Id

. at 717-18. After the City of Houston denied his reque st for disclosure based on section 552.028, the inmate sued to establ i s h t h at h e had a constitutional rig ht to information perta ining to his criminal convi ct i ons. Id. at 717. The inmate

asser ted that denial of his reque st pursuant to section 552.028 violated a number of constitutional rig hts, including due proce ss, equal protec tion, the Six th Amendment rig ht to self-r epre sentation, and the First Amendment rig ht of fre e speec h. Id

. Wit h reg ard to eac h of these challeng es, the appellate court uphe ld the constitutionalit y of sec tion 552.028. Id. at 718-19. Pertinent to the issues in this case , the court in Nabelek held that the inmate had “no constitutionally protec ted rig ht to that information as a matter of due proce ss,” even considering his offe r to pay the cost of producing responsive documents. Id

. at 7 1 8 (citing Bracy v. Gramley , 520 U.S. 899, 904 (1997), in which the United States Supreme Court held that “[a] habea s petitioner, unlike the usual civil litigant in fede ral court, is not entitled to discovery as a matter of ordinary

10course ”). The court noted that declination of the reque st did not hinder the inmate’s ability to f ile a writ of habe as cor

pus, and as a

result, there was no due -proc ess violation. Id . at 719. The court also held that the inmate’s equal- protec tio n c h a ll e n g e to s e c ti o n 5 5 2

. 0 2 8 was meritless beca

use prisoners are not a suspect class and the statute further ed leg itimate state interests in avoiding “unnec essar

y use of state and other g overnme ntal ag encie s’ employ ee resour ces.” Id

. at 719. Even though the inmate offe red to pay for production of the rec ords, the court found that fac tor immaterial to the pertinent issue, which was whether the leg islature had a leg itimate state interest in

enac ting the law. Id

. I n holding that the statute passed constitutional muster, the court observe d that responding to reque sts from inmate litigants require s the time and attention of public employ ees and that “[i] t require s litt le ef fort of thought t o understand the strain on public resour ces were ag encie s require d to comply

fully with ever y prisoner’ s reque st for information.” Id

. Other courts have likewise conclude d that section 552.028 withstands scrutiny in the fac e of constitutional c halleng es. I n Cox v. State , a convicted felon reque sted copies of written and oral transcr ipts perta ining to his conviction, including g rand jury deliberations, the indictment, final
sentenc ing in the plea barg ain, and various motions. 202 S.W .3d 454, 454-55 (Tex. App.—Amar illo 2006, no pet.). The court he ld that a n inmate is not entitled to f ree rec ords to c ollatera lly attack his conviction by alleg ing that the state was not following the plea barg ain, and the court was authorized
to deny his reque st pursuant t o s ection 552.028. Id

. at 455. Fur thermore , in Escobar v. State , a prisoner sought copies of t rial records and t ra n s cripts pertaining to his case for use in prepa ring an application for post-conviction habea s corpus relief

. 880 S.W .2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Escobar claimed he was entitled to the rec ords pursuant t o Un i t ed States

11v. Ma cC o l l o m , 426 U.S. 317 (1976), but he did not asser t any specific violation of his rig h t s . Escobar , 880 S.W .2d at 783-84. The court noted that an indige nt criminal defe ndant is not entitled, either as a matter of equal protec tion or of due proce ss, to a fre e transcr iption of prior proce eding s for use in seekingpost-conviction habe as re lief. Id. at 783.

Her e, Trevino relies heavily on MacCollom to establish his constitutional rig ht to the reque sted documents. 426 U.S. at 320-2 1 , 3 2 3 -27. Howeve r, MacCollom does not support Trevino’ s claim. I n that case , the Unit ed S tates S u p re m e C o u rt considere d the consti tutionality of 28 U.S.C. § 753(f) , wh i ch l imited the circumstances in which a habea s petitioner can obtain a free trial transcr ipt to circ umstances in which a judge has cer tifie d that the petitioner’s claims are not frivolous and that the transcr ipt is nece ssary to support the claims. Id

. at 320-21. The appellee , who wished t o challenge his conviction in a collater al proce eding , argued that the statute violated his due-pr ocess and equal- protec tion rig hts under the U.S. Constit ution. Id. at 323. The Court held that a prisoner does not have a constitutional rig ht to a free copy of hi s criminal t rial t ransc ript to assist in the prepa

ration of a post-conviction motion for relief

. Id. at 325-26. Specifica lly , the Court held that (1) the rig ht to a fre e trial transcr ipt was not a nece ssary concomitant to a writ of habea s corpus, (2) the conditions established by section 753(f) wer e not arbitra ry and unrea sonable, and (3) the Equal Protection Clause wa s not violate d beca use the petitioner had an adequate opportunity to attack his conviction vi a direct appea l (had he chosen to pursue one) and the t ranscri pt rema ined available at

no cost on the conditions previously noted. See id. at 321-28 (“The Due Process Clause of the Fifth Amendment d o es n o t establish any rig ht to an appea l, and cer tainly does not establish any rig ht to collater ally attack a final judgme nt of conviction.” (I nterna l citation omitted.)). The Court observe d:

12[T] he fac t that a par ticular ser vice mig ht be of be nefit to an indig ent defe ndant does not mean that the service is constitutionally require d. The duty of the State under our case s is not to duplicate the leg al arse nal that may be privately reta ined by a criminal defe ndant in a continuing eff ort to reve rse his conviction, but only to assure the indige nt defe ndant an adequa te opportunity to prese nt his claims fairly in the context of the State’s a

ppellate pr ocess.

Id

. at 328; cf. Escobar , 880 S.W .2d at 784 (“The state likewise has no constitutional duty to provide without c harg e any other unspecifie d ‘trial rec ords’

. . . except under the same c onditions and upon the same showing that applies to obtaining a fre e transcr iption of the court repor ter’s notes of a trial or other or al hea

ring .”). Trevino attempts to distinguish the fore g oing case s from his individual circ umstances

on the basis of nece ssity and willingness to pay for the documents. To support his claim of nece ssity , Trevino cites sever al federa l case s for the prop o s i t i o n t h at he mus t have specific fac ts to support a habea s claim conce rning a fac tual dispute. See United States v. W ebster , 392 F.3d 787, 802 (5th Cir. 2004) (stating that habea s petitioner may invoke discovery proce ss in fede ral habea s court, but “[c]onclusional alleg ations are insufficient to war rant discovery ; the petitioner must set forth specific alleg ations of fac t”); see also Bracy v. Gramley , 520 U.S. 899, 908-09 (1997) (stating that petitioner

can show g ood cause for discovery wher e specific alleg ations show rea son to believe that petitioner may be entitled to re lief). Even if the constitutional analy ses in Nabelek and MacCollom would be differ ent upon a claim or s h owing of nece ssity and financ ial means, those circ umstances are not applicable to Trevino’ s case . First, the information Trevino seeks is not essential to his ineffe ctive-a ssistance c laim beca use t he constit utionality of a state criminal statute is a question of law. See Goyzue ta v. State , 266 S.W .3d 126, 130 (Tex. App.—For t Worth 2008, no pet.) (addr essing
13constitutionalit y of section 71.021 of Texas Penal Code as question of law); see also Owens v. State ,

19 S.W .3d 480, 483 (Tex. App.—Amar illo 2000 , no pet.) (“Q uestions conce rning the constitutionalit y and interpre tation o f a cr i m i nal statute are questions of law that we revie w de

novo .”). Thus, the State’s position or opinion regard i n g the constitutionalit y of the prohibited-we apons stat u te or the rig ht to bear arms is not g erma ne to Trevino’ s claim that trial counsel wa s ineffe ctive for not challeng ing the statute’s constitutionality

. Second, Trevino lacks the financ ial means to pay for production of th e d o cuments. He is proce eding in forma paup er i s i n t h i s litigation, and the rec ord ref lects that he has no prese nt ability to pay for the docume n ts. I nstead, he claims the ability to pay based only on a conting ent future expectation of g ratuitous monetary contributions to his inmate trust acc ount from a family

m ember. Even if the information Trevino provided reg arding his financ ial circ umstances we re inac curate, t he trial court would still have had t he authority under Chapter 14 to dismiss Trevino’ s claim b as ed on a false or fra udulent alleg ation of poverty

. See Tex. Civ. Prac. & Rem. Code § 14.003(a) (1). Either way , the trial court would not have err ed in dismiss ing Trevino’ s claims. We there fore overr

ule Tre vino’s second, third, a nd fourth appe llate issues. Finally , Trevino asser

ts that the trial court should have allowed him to amend his petition befor e d i smissi ng his claims with prejudice

. “[D]i smissal with prejudice is improper when the plaintiff is capa ble of reme dy ing the jurisdictional defe ct.” Harris Cnty. v. Syke s , 136 S.W .3d 635, 639 (Tex. 200 4 ). I n the present case , we conclude that Trevino’ s err or could not b e reme died by amendment. Section 552.028 clea rly applies to Trevino’ s reque st for information under the PI A and is not unconstitutional on its fac e or as applied to his circ umstances. Acc ording ly ,

14Trevino’ s claim that the State was require d to pr oduce responsive documents has no arguable basis

in law and ha s no rea listi c cha nce of ultimate suc cess. See Tex. Civ. Prac. & Rem. Code § 14.003. Moreove r, althoug h Trevino was not pr ovided an opportunity to amend his petition, he nonetheless filed an amende d petition

. Ho we v er, neither Trevino’ s amende d petition nor his appellate brief

asser ts any additional fac ts or leg al theories that would support his claim that the State was require d
t o honor his PI A reque st. Thus, it is appar ent that g iving Trevino another opportunity to am en d would not have resulted in a differ ent outcome. We t h er ef o re conclude that the trial court did not abuse its discretion in dismiss ing Trevino’ s claims with prejudice

. We overr ule appellate issues one, five, e ight, a

nd nine.

CONCLUSION Having overr

uled all nine of Tr evino’s issues, we aff irm the trial cour

t’s judgme nt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: August 7, 2013

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