THOMAS STEWART APPELLANT v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE ET AL APPELLEES

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Court of Appeals of Texas, Amarillo.

THOMAS STEWART, APPELLANT v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., APPELLEES

NO. 07–11–0410–CV

Decided: November 16, 2011

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER

Thomas Stewart, an inmate proceeding pro se and in forma pauperis,1 appeals the trial court's judgment of August 9, 2011, dismissing his claims against the Texas Department of Criminal Justice, et al., for, among other claims, injuries he allegedly sustained from a premises defect in the prison shower area.   Stewart perfected this appeal in the Tenth Court of Appeals and the case was transferred to this Court pursuant to the Texas Supreme Court's docket equalization efforts.2  The clerk's record has yet to be filed;  however, pending before this Court are two documents requiring immediate action, to-wit:  (1) Request for Appointment of Counsel and (2) Request for Referral to Alternative Dispute Resolution with Federal Pre–Sentence Investigation in Support.   For the reasons expressed herein, we deny the relief requested.

Request for Appointment of Counsel

In his request, Stewart explains he is incarcerated in federal prison in Arkansas with no access to Texas law, which he characterizes as an “exceptional circumstance warranting appointment of counsel.”   The Department filed a response in which it argues that Stewart does not demonstrate “exceptional circumstances.”   Agreeing with the Department, we deny Stewart's request.

A presumption exists that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.   Lassiter v. Dep't of Social Services, 452 U.S. 18, 25–27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).   An indigent inmate does not have a right to appointed counsel in a civil case merely because the inmate's suit is against an employee of the prison in which he is incarcerated.   See Gibson v. Tolbert, 102 S.W.3d 710, 711 (Tex.2003).   However, a trial court has discretion to appoint counsel to an indigent civil litigant, Tex. Gov't Code Ann. § 24.016 (West 2004), “in some exceptional cases ” in which “the public and private interests at stake are such that the administration of justice may best be served․ ”  (Emphasis added).  Travelers Indem.   Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex.1996).   The Gibson Court noted that what is “ ‘exceptional is by definition rare and unusual—something not easily defined by a general rule.”   102 S.W.3d at 713.   The Court added “it is easier to determine what is not exceptional than to pronounce a general proposition on what would be exceptional.”  Id.

Without seeming unsympathetic to Stewart's predicament, he is already incarcerated so there is no chance that failure to appoint counsel in his suit against the Department and its employees will result in loss of liberty.   Additionally, in Gibson, the Court recognized that inmate suits against prison personnel, rather than rare and unusual, are common.  Id. A suit brought by an indigent inmate does not constitute exceptional circumstances.   Id. We decline to hold that a premises liability claim is an “exceptional case” with public and private interests at stake which requires the appointment of counsel.   Consequently, we deny Stewart's request for appointment of counsel.

Request for Referral to Alternative Dispute Resolution

with Federal Pre–Sentence Investigation in Support

By a separate document, Stewart maintains that his efforts for discovery and request for a mediator have been ignored by the trial court.   He contends that referral of his suit for alternative dispute resolution is appropriate.   We disagree.

The transferor court, the Tenth Court of Appeals, adopted a local rule providing for alternative dispute resolution.   See 10th Tex.App. (Waco) Loc. R. 9.3 It is a discretionary rule.  Rule 41.3 of the Texas Rules of Appellate Procedure, entitled Precedent in Transferred Cases, provides for application of the transferor court's precedent.   However, the Notes and Comments to Rule 41.3 provide that the “transferee court is not expected to follow the transferor court's local rules․”  This Court has not adopted local rules and has no provision for referring a civil case for alternative dispute resolution.   Consequently, Stewart's request is denied.

It is so ordered.

FOOTNOTES

FN1. According to the documents before us, Stewart is currently incarcerated in federal prison in Arkansas..  FN1. According to the documents before us, Stewart is currently incarcerated in federal prison in Arkansas.

FN2. Tex. Gov't Code Ann. § 73.001 (West 2005)..  FN2. Tex. Gov't Code Ann. § 73.001 (West 2005).

FN3. Rule 9 provides, “[t]he Court may, under section 154.021 of the Texas Civil Practice and Remedies Code, on a party's motion or on its own initiative, refer a civil case for alternative dispute resolution..  FN3. Rule 9 provides, “[t]he Court may, under section 154.021 of the Texas Civil Practice and Remedies Code, on a party's motion or on its own initiative, refer a civil case for alternative dispute resolution.

Per Curiam

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