NO. 07-00-0476-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	mMARCH 5FEBRUARY 28, 2001

	_________________________________

	ANTONIO SEPEDA,

										Appellant

	v.

	MATT KENNELLY and RAYNALDO CASTRO,

										Appellees

	_________________________________

	FROM THE 223rd JUDICIAL DISTRICT FOR GRAY COUNTY

	NO. 31,689; HON. LEE WATERS, PRESIDING

	_______________________________

Before Boyd, C.J., and Quinn and Reavis, JJ.

	Antonio Sepeda (Sepeda), an inmate at the Rufe Jordan Unit of the Texas

Department of Criminal Justice (TDCJ), appeals from an order dismissing his suit against

Matt Kennelly (Kennelly) and Raynaldo Castro (Castro), employees of TDCJ.  Via his pro se brief, he contends the trial court erred in dismissing the action.  We reverse.

	Background

	Reading Sepeda’s original petition liberally, he alleged that he previously had filed

a civil action, cause No. 31,480, against employees of the Rufe Jordan Unit.1  Thereafter, Kennelly, who allegedly supervised the defendants involved in the initial suit, began to

retaliate against Sepeda for filing the action.  The supposed retaliation took the form of

Kennelly’s refusal to accord Sepeda different work assignments and privileges granted

other prisoners.  When the situation was made known to Castro, a senior warden at the

prison, the latter allegedly “failed to even attempt to correct or even make any full

investigation.”  Rather, Castro “asked Unit Major Bryan to look into the situation.”  In turn,

Bryan purportedly informed Sepeda that no retaliation was occurring.  Nevertheless,

Sepeda’s requests for other job assignments continued to be denied.

	According to Sepeda, the actions of Kennelly, Castro, and others were “all a form

of punishment simply because [he] . . . exercis[ed] [his] rights and proceeding to access to

courts with [his] civil rights complaint against employees . . . for mistreatment of a

handicapped inmate”.  Furthermore, in so combining against him, their retaliation

purportedly denied him his constitutional right to access the courts.

	Kennelly and Castro joined issued via answer, special exceptions, and plea to the

jurisdiction of the court.  Thereafter, the trial court entered its order dismissing the cause. 

The reasons given for same were:

	1.	Plaintiffs [sic] claims for relief . . . are derived from the claims

		asserted in cause No. 31,480 now pending before this court, 

		and the relief requested is duplicitous of the relief requested

		in No. 31,480, so that Plaintiff therefore has an adequate

		remedy in No. 31,480 for the damages requested in this

cause;

	2.	Plaintiff’s claims for damages herein may be addressed in No. 31480;

	3.	Plaintiff has asserted no constitutionally protected right in this cause, nor has Plaintiff stated a claim of constitutional

dimension in this cause;

	4.	Plaintiff’s claims herein have no arguable basis in law or fact and his realistic chances of success herein are slight.

From the order, Sepeda appealed.

	Standard of Review

	Statute permits a trial court to dismiss an action initiated by someone proceeding in forma pauperis.  Tex. Civ. Prac. & Rem. Code Ann. §§13.001(a) & 14.003(a) (Vernon Supp. 2001).  Before doing so, however, the trial court must first find either that the allegations

of poverty were false, that the action was frivolous or malicious, id. at §13.001(a)(1) & (2), or that the inmate executed a false affidavit or unsworn declaration.  Id. at §14.003(a)(3).  Next, in determining whether the action is frivolous, the court may consider whether 1) the

plaintiff’s “realistic chance of ultimate success is slight,” 2) the claim lacks “arguable merit

in law or fact,” 3) the plaintiff can prove a set of facts supporting his claim, id. at §§13.001(b)(1), (2), & (3) & 14.003(b)(1), (2), & (3), or 4) the claim arises from the same

operative facts as a previous claim filed by the inmate.  Id. at §14.003(b)(4).  Finally, the decision to dismiss is reviewed under a standard of abuse discretion.  See Morris v. Collins, 916 S.W.2d 527, 528 (Tex. App.--Houston [1st Dist.] 1995, no writ) (stating that a trial court

has broad discretion to determine whether to dismiss under 13.001).  And, discretion is abused when the court acted arbitrarily, unreasonably, or without reference to guiding

principles.  Harrison v. Texas Dept. Crim. Justice, 915 S.W.2d 882, 887 (Tex. App.-- Houston 1995, no writ).  

	Application of Standard

	We now consider each ground relied upon by the trial court.  The first involves the

conclusion that the claims have no arguable basis in fact.  Before the trial court could

legitimately make that finding, it was obligated to conduct an evidentiary hearing.    In re Wilson, 932 S.W.2d 263, 265 (Tex. App.--El Paso 1996, no writ); Morris v. Collins, 916 S.W.2d at 528; Harrison v. Texas Dept. Crim. Justice, 915 S.W.2d at 887.   However, the record at bar reveals no such hearing having been conducted.  Thus, the trial court could

not have lawfully dismissed the suit on that ground.  Id.

	The second ground we address involves the finding that the claims lacked arguable

basis in the law.  In testing the validity of this ground, we discovered authority holding that

prison officials cannot retaliate against a prisoner for availing himself of the courts.  Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995).  Furthermore, the prohibition encompasses discrimination in job assignments.  Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997).  Here, Sepeda averred that Kennelly and Castro impermissibly retaliated against

him because he filed a civil action against other TDCJ employees.   Furthermore, the

retaliation allegedly took the form of denying him job assignments and privileges granted

other prisoners.  On their face, these allegations fall within the scope of Woods and Vignolo and, therefore, present a facially viable chose-in-action.  And, to the extent they do and

since the trial court did not conduct an evidentiary hearing before dismissing the cause, “it

is impossible to tell from [the] petition whether the . . . action’s realistic chance of ultimate success is slight . . . .”  Spellmon v. Sweeney, 819 S.W.2d 206, 212 (Tex. App.--Waco 1991, no writ).  Thus, dismissal because Sepeda’s purported claim had no arguable basis

in law or lacked a realistic chance of success was improper.  

  	The third ground we consider involves the determination that the claims were duplicitous of those encompassed in cause No. 31,480.  None of the pleadings from No.

31,480 were made part of the record before us.  Nevertheless, the original petition at bar

pertains to a circumstance arising after cause No. 31,480 was filed.  Furthermore, the purported wrong and injury involved in the cause before us concerned retaliation for

initiating the former proceeding.  Moreover, the retaliation was supposedly committed by

individuals other than those named as defendants in the first suit.  Thus, the proceeding

before us arose from two different transactions or occurrences and involved not only a

different wrong and injury but also different parties.  In short, the two actions did not

encompass the same operative facts as contemplated by §14.003(b)(4) of the Texas Civil

Practice and Remedies Code.2   Nor were they duplicitous simply because the first suit spawned purported misconduct giving rise to the second.  So, dismissal on the ground that

the suits were duplicitous was improper.

	The fourth and final ground we consider concerns the finding that Sepeda’s claims

for damages “may be addressed in [cause] No. 31,480.”  As shown above, the two suits

involved different acts, transactions, and parties.  Thus, resolution of the dispute encompassed in the first proceeding would not ipso facto resolve that in the second.  So, one could not simply conclude that the issues in the second may have been addressed in

the first.  Furthermore, and to the extent that economy of resource would have favored

resolving all disputes at one time, the appropriate recourse was consolidation of the two

proceedings, not dismissal of the second action.  So, dismissal on this ground also was

improper. 

	In sum, the content of the record at bar satisfies none of the grounds permitting

dismissal which are contained in either §§13.001 or 14.003 of the Texas Civil Practice and

Remedies Code.  In holding otherwise and dismissing the cause, the trial court’s decision

did not comport with guiding principles and, therefore, constituted an abuse of discretion. 

Accordingly, the order of dismissal is reversed and the cause is remanded for further

proceedings.

								Brian Quinn

								    Justice

Do not publish.