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No Forfeiture of Good Time for Frivolous Habeas in Texas

by Matthew T. Clarke

The Texas Court of Criminal Appeals (CCA) has held that the statute
providing for forfeiture of good time belonging to a prisoner who filed a
frivolous lawsuit does not apply to state habeas corpus actions.

George William Bieck, a Texas state prisoner, filed his twenty-first state
application for a writ of habeas corpus pursuant to Article 11.07, Texas
Code of Criminal Procedure (CCP). The CCA held that the issues raised in
the habeas application were identical to those raised in his sixteenth
habeas application. Thus, the habeas application was frivolous.

On its own motion, the CCA asked the parties to brief whether the statute
requiring prisoners to forfeit good conduct time for filing frivolous
lawsuits, § 498.0045, Texas Government Code, applied to state habeas
corpus. Holding that this issue was not resolvable using the plain text of
the statute the statute, the CCA considered extratextual factors.

The definitions of "lawsuit" in Merriam-Webster's Dictionary of Law,
Flack's Law Dictionary, Pallentine's. Law Dictionary and Barron's Law
Dictionary vary with two of them excluding habeas corpus from the
definition of "lawsuit" and two of them including it. Thus, they- provide
no help.

The courts, including the CCA, have usually interpreted "lawsuit" to
include criminal actions. However, some specifically excluded criminal
actions. Furthermore, there is no general consensus on whether habeas
corpus is a civil proceeding, a criminal proceeding, or neither. Thus,
court opinions are of little use in resolving the issue.

The tapes of the hearings on H.B. 1343, which introduced § 498.0045, reveal
no example of habeas corpus among the many examples of frivolous lawsuits
discussed. No person involved in the hearings ever suggested that the
statute would apply to habeas corpus. One legislator said that the statute
would be a civil equivalent of the abuse of the writ (of habeas corpus)
doctrine, implying that the statute would not apply to habeas corpus.

The Texas Attorney General (AG) had concluded that there is no general
consensus on whether habeas corpus is a "suit" or "action." Atty Gen. op.
DM-295, 1994 Tex. AG LEXIS 469 *19 Crime (June 16, 1994). This is
consistent with the AG's position in several cased in which the AC
described habeas corpus as a "summary remedy" rather than a "suit" because
Texas habeas corpus actions are brought ex parte.

The CCA considered the justifications for the statute, including reduction
of frivolous suits filed by prisoners seeking only to get a day away from
the prison, a situation that rarely occurs in habeas corpus. Another
justification was to reduce the workload of the AG's office; however, the
AG's office ordinarily litigates civil suits, not state habeas corpus actions.

H.B. 1343 also created Chapter 14 of the Texas Civil Practice and. Remedies
Code which fast tracks the handling and dismissal of frivolous prisoner
lawsuits and outlines standards for determining if a lawsuit is frivolous.
However, Chapter 14 only applies to prisoners who filed a lawsuit in forma
pauperis, a situation that never occurs in state habeas actions because, by
state statute, district clerks are forbidden from collecting filing fees
for state habeas corpus actions. Article 11.051, CCP.

The CCA concluded that the legislature did not intend to apply the good
time forfeiture statute to habeas corpus. Therefore, no prisoner should
have good time forfeited for filing a frivolous habeas corpus. Fleck's
application was dismissed pursuant to Article 11.07, Section 4, CCP, with
no good conduct time forfeiture. See: Ex parte Neck, 144 S.W.3d 510
(Tex.Crim.App. 2004).

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Related legal case

Ex parte Neck

Ex parte Rieck, No. 74, 144 S.W.3d 510 (Tex.Crim.App. 09/15/2004)


[2] No. 74,799

[3] 144 S.W.3d 510, 2004.TX

[4] September 15, 2004



[7] The opinion of the court was delivered by: Keller, P.J.


[9] We filed and set this application for writ of habeas corpus to determine whether the "Forfeiture of Good Conduct Time: Frivolous Lawsuits" statute applies to Article 11.07*fn1 habeas corpus proceedings. On our own motion, we asked the parties to brief the issue. We hold that the statute does not apply in the habeas context.


[11] In 1992, applicant pled nolo contendere to indecency with a child and was sentenced to sixteen years imprisonment and a $750 fine. Since that conviction, applicant has filed twenty-one applications for writ of habeas corpus, many of which have been dismissed pursuant to Article 11.07 §4.*fn2 In this application, he complains about the time credit consequences of his 1999 parole revocation. These claims are identical to those raised in his sixteenth application.


[13] A. General Principles

[14] In construing a statute, we confine our analysis to the plain meaning of the text, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly intended.*fn3 When we are called upon to go beyond the plain meaning of the statutory text, we may consider various extratextual factors.*fn4 Those factors include but are not necessarily limited to: (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision.*fn5

[15] B. The Statute

[16] TEX GOVT CODE §498.0045(a) provides:

[17] In this section, "final order" means a certified copy of a final order of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate while the inmate was in the custody of the department or confined in county jail awaiting transfer to the department following conviction of a felony or revocation of community supervision, parole, or mandatory supervision.

[18] On receipt of a final order, the Texas Department of Criminal Justice is to forfeit certain designated periods of time, which may not later be restored.*fn6

[19] We have not had occasion to analyze the statute before now, but we have referred to its language. In dicta in Jones v. State, we said: "Writ applications dismissed under section 4 may, in appropriate cases, be dismissed with a final order declaring the lawsuit frivolous."*fn7 But we did not invoke the statute's provisions or even cite to it in Jones, let alone analyze it. Faced now with the potential applicability of the statute to habeas proceedings, we conduct an analysis.

[20] C. Plain or Ambiguous

[21] Does an Article 11.07 habeas corpus proceeding constitute a "lawsuit" for the purpose of the statute? Words should be defined in accordance with any technical or particular meaning acquired by legislative definition or otherwise.*fn8 In determining the plain meaning of a word, we initially look to dictionary definitions.*fn9 Since "lawsuit" is a legal term, we shall look to definitions from legal dictionaries.

[22] Merriam-Webster's Dictionary of Law defines "lawsuit" as "an action brought in a court for the purpose of seeking relief from or remedy for an alleged wrong."*fn10 This definition would appear to include post-conviction habeas proceedings.*fn11 But definitions from other legal dictionaries are not as favorable to that proposition.

[23] Black's Law Dictionary defines "lawsuit" as a "suit" and defines "suit" as: "Any proceeding by a party or parties against another in a court of law."*fn12 Whether a habeas proceeding is a proceeding by one party against another is questionable. Habeas proceedings in Texas are styled "ex parte," which means, "Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested."*fn13 On the other hand, as a matter of statute and practical fact, an Article 11.07 habeas corpus proceeding does involve a party adverse to the applicant - the State - which, contrary to what occurs in traditional ex parte proceedings, is given notice and the opportunity to respond.*fn14

[24] Some legal dictionary definitions cast doubt on the propriety of using the term "lawsuit" to describe criminal proceedings. Citing the Michigan Supreme Court case of Patterson v. Standard Accident Ins. Co.,*fn15 Ballentine's Law Dictionary defines "lawsuit" as: "An action or proceeding in a civil court in law or equity, but not a criminal prosecution."*fn16 And Barron's Law Dictionary, citing Kohl v. United States*fn17 and Patterson, equates "lawsuit" with "suit," and defines the term more expansively, saying that it could be used to describe criminal proceedings but is more appropriate for civil proceedings.*fn18

[25] In Patterson, an insured involved in an automobile accident was prosecuted for manslaughter.*fn19 The insurance policy provided that the insurance company would defend the insured in any "suits" brought against him on account of the accident.*fn20 The insured claimed that "suits" included criminal prosecutions, while the insurance company interpreted the term "suits" to refer only to civil actions.*fn21 Ruling in favor of the insurance company, the Michigan Supreme Court held that the word "suits" in the insurance policy did not extend to criminal prosecutions.*fn22 The Michigan court acknowledged that the word "suit" enjoyed broad usage, including being applied to a criminal prosecution in some contexts, but that application to criminal proceedings was disfavored.*fn23 The court also looked at the specific context before it and concluded that its interpretation of "suits" as meaning "civil suits" conformed to the purpose of automobile insurance contracts.*fn24 Two cases involving a corporation's right to prosecute and defend "suits" after dissolution have relied on or cited Patterson to determine that "suits" applies only to civil proceedings.*fn25

[26] The construction of the word "suit" in these cases and others,*fn26 and the dictionary definitions of "suit" and "lawsuit" derived from the cases, are attempts to determine the meaning of a word by looking at its context and common usage - tools of construction that are well recognized in Texas.*fn27 An examination of our own prior cases shows that the word "lawsuit" has been used to refer to a criminal prosecution in connection with a wide variety of issues.*fn28 Our use of the word "lawsuit" to refer generally to both civil and criminal actions was evident in Taylor, where we held that it was not permissible for attorneys representing the same party to take conflicting positions: "The District Attorney does not point to any other court that is called on in any case to entertain conflicting decisions made by two attorneys representing one party to a lawsuit."*fn29 Moreover, participants in criminal trials often refer to the criminal prosecution as a "lawsuit."*fn30 In numerous cases we have referred to a civil action as a "civil lawsuit"*fn31 while we have found just a few cases referring to a "criminal lawsuit," or a synonym thereof.*fn32 Although this may indicate that the use of the word "lawsuit" is much more common in connection with civil proceedings, it nevertheless supports the proposition that the word "lawsuit" can sometimes broadly refer to both civil and criminal actions.

[27] However, while "lawsuit" is used in its broad meaning in our cases, statutory references to the word almost uniformly involve the more narrow use as a description of civil actions.*fn33 Excluding the statute under consideration in this case and related statutes,*fn34 the only possible exceptions appear to be the statute describing the barratry offense in the Penal Code and a Water Code statute that may refer to criminal offenses committed under that code.*fn35

[28] The United States Supreme Court has, at times, used the word "suit" or "lawsuit" broadly. In Kohl, the Supreme Court defined "suit" in relation to the expansive federal jurisdiction created by the Judiciary Act of 1789.*fn36 And in the context of the federal statute authorizing the filing of in forma pauperis actions, the Supreme Court has referred to the word "lawsuit" in connection with both criminal and civil actions.*fn37

[29] Regardless of how one resolves the meaning of the word "lawsuit," whether habeas proceedings in particular can be properly characterized as lawsuits is unclear. In addition to this Court's own casual reference to a habeas corpus proceeding as a "lawsuit,"*fn38 there is the pronouncement by the United States Supreme Court in Kohl that expressly includes habeas corpus within its own list of proceedings that constitute "suits."*fn39 However, implicitly utilizing the Black's Law Dictionary definition of "suit" as an action by one party against another, the Texas Attorney General has concluded that "there is no consensus on whether habeas corpus is a 'suit' or 'action.'"*fn40 In connection with this conclusion, the Attorney General cited the Texas Supreme Court case of Ex parte Ramzy and several out-of-state cases for the proposition that habeas corpus is not a "suit" but instead a "summary remedy."*fn41

[30] To the extent that the criminal nature of a proceeding might be a stumbling block to characterizing the proceeding as a lawsuit, it should be observed that most jurisdictions have traditionally regarded habeas corpus as a civil remedy, even when the relief sought is from confinement in the criminal justice system.*fn42 Yet courts have struggled with how to characterize habeas proceedings and have sometimes characterized them as "neither civil nor criminal but rather sui generis" or "an exercise of special constitutional and statutory jurisdiction."*fn43 The United States Supreme Court has conceded that habeas corpus proceedings are characterized as "civil" but called that label "gross and inexact," stating that, "Essentially, the proceeding is unique."*fn44 And while a habeas proceeding is considered in Texas to be separate from the criminal prosecution - being a collateral, rather than direct, attack on the judgment of conviction*fn45 - Texas has gone further in eschewing the civil label for habeas proceedings arising from criminal prosecutions or convictions. Such proceedings are categorized as "criminal" for jurisdictional purposes, and the Texas Rules of Civil Procedure do not ordinarily apply.*fn46 Article 11.07 habeas proceedings are categorized as criminal proceedings by statute.*fn47

[31] At this point, it is apparent that the word "lawsuit" is ambiguous. While the word may embrace habeas corpus proceedings, we cannot conclude from the statute itself that it does.

[32] D. Extratextual Factors

[33] We turn, then, to extratextual factors. We begin with the legislative history, which is fairly extensive. On the House floor, Representative Allen Hightower, the sponsor of the bill, H.B. 1343, began by stating, "What this bill does is it tracks a new federal system called the 'Spears' method."*fn48 He continued by summarizing the various aspects of the bill, including the good-time forfeiture provision.*fn49

[34] Representative Hightower's "Spears" comment appears to be a reference to the Fifth Circuit's opinion in Spears v. McCotter.*fn50 In that case, an inmate filed in federal district court a pro se, in forma pauperis §1983 civil-rights complaint against the Texas Department of Corrections for subjecting him to cruel and unusual punishment by requiring him to perform work beyond his physical capacity and by not affording him proper medical attention.*fn51 Although both parties demanded a jury trial, the case was referred to a magistrate for an evidentiary hearing without a jury.*fn52 The magistrate recommended that the case be dismissed, and the district court adopted the magistrate's recommendation.*fn53

[35] The Fifth Circuit held that referring the petition to a magistrate was proper and that the magistrate could determine, without a jury trial, whether the complaint was frivolous and should be dismissed.*fn54 The Fifth Circuit further found that, pursuant to 28 U.S.C. §1915(d), a frivolous in forma pauperis action could be dismissed without a jury determination, and it recommended the use of such a procedure to winnow out the growing number of inmate cases.*fn55 The United States Supreme Court later indicated that a fast-track method of dismissing frivolous in forma pauperis actions was desirable because of the lack of economic disincentive to filing such actions.*fn56 The Supreme Court also recognized that inmate complaints could be filed "as a means of gaining a 'short sabbatical in the nearest federal courthouse.'"*fn57

[36] A reading of subsections (a) and (d) of §1915 together (1979 version)*fn58 makes clear that the ability to dismiss frivolous actions was not limited to civil complaints, but applied to both "civil" and "criminal" proceedings.*fn59 However, that statute was not limited to "suits" or "lawsuits" but broadly encompassed "any suit, action or proceeding, civil or criminal, or appeal therein."*fn60 Additionally, the statute was not specifically directed at inmate lawsuits.*fn61 Spears (and Neitzke) addressed the statute in the context of the problem of inmate civil litigation.*fn62 So Representative Hightower's reference to Spears does not in itself provide any clear guidance about whether the forfeiture statute was intended to apply beyond the realm of civil litigation, although the policy reasons articulated in the federal cases may be relevant to our inquiry.

[37] The House Committee report on H.B. 1343 began by listing seven examples of frivolous lawsuits, all of which were civil actions, initiated by an inmate-plaintiff, not habeas proceedings.*fn63 The report then stated: "These cases, and the hundreds like them, take time away from the business and resources of the Department of Criminal Justice, and from the resources of the Attorney General's office."*fn64 The Attorney General is charged with defending the State, its officers, and its institutions in civil actions*fn65 but is not ordinarily assigned the responsibility to respond to Article 11.07 post-conviction applications for writ of habeas corpus in Texas state courts - a task largely performed by district attorneys' offices.*fn66 The House Committee report explained that 659 inmate cases were opened by the Attorney General's office in 1993 and another 994 cases were opened in 1994.*fn67 The report further stated that the sixteen most prolific inmate litigators had filed 498 cases.*fn68 From the context of the report, it is clear that these were all civil cases.*fn69 The report also explained that the bill contained a number of provisions to combat inmate lawsuits, including a new chapter in the Civil Practice and Remedies Code to enable the efficient disposition of frivolous civil actions, a monetary disincentive to filing such actions, and the statute in question, which permits the forfeiture of good-conduct time for filing frivolous lawsuits.*fn70 The Senate Committee report briefly repeated some of the statements made in the House report.*fn71

[38] The House and Senate committee hearings are replete with references to civil actions, the need to curb those actions, and the bill's design to do so.*fn72 In the House hearing, Representative Hightower pointed out that "many times these frivolous lawsuits are filed just for the purpose to get a day away from the unit,"*fn73 an event that does not ordinarily occur in habeas proceedings.*fn74 An unidentified representative asked Ann Kraatz, of the Attorney General's Office, why Texas Rule of Civil Procedure 13, "which prohibits frivolous lawsuits and provides sanctions" could not be used to combat frivolous inmate litigation.*fn75 Her answer, and the remarks of other witnesses, indicated that Rule 13 contemplates service of process,*fn76 which, under §14.003, could be avoided,*fn77 and that indigent inmates could not be deterred by monetary sanctions.*fn78

[39] Not one person in the hearings ever indicated that the statute might apply to applications for writ of habeas corpus, or to any criminal proceedings.*fn79 In fact, there is one passage to the contrary. Maxine Barnette, representing Anderson County, referred briefly to the "abuse of the writ doctrine," testifying that, "on the criminal side of the law, the appeals court has limited what they call abuse of the writ."*fn80 She remarked that "the time has come to address" the issue "in the civil area, too."*fn81 Moreover, the provision at issue in this case was just one aspect H.B. 1343's effort to curb frivolous lawsuits. The bill created several other statutes, found in the Civil Practice and Remedies Code, that illustrate the bill's exclusive focus on civil actions. Although placement in the Civil Practice and Remedies Code does not automatically preclude application of a given statute to criminal or habeas proceedings,*fn82 the specific characteristics of these particular statutes make their exclusively "civil" focus clear.

[40] First, the bill added a venue provision regarding inmate litigation to the Civil Practices and Remedies Code but added no comparable provision to the Code of Criminal Procedure.*fn83 This provision, placed in a chapter that assigns venue to various civil proceedings,*fn84 referred to "an action that accrued while the plaintiff was housed in a Texas prison facility."*fn85 A habeas claim is not ordinarily thought to "accrue" while the inmate is housed in prison because habeas claims challenge the fact or duration of confinement (or restraint) rather than the conditions of confinement.*fn86 Moreover, the term "plaintiff" is foreign to Article 11.07 jurisprudence, as the proper term for an inmate applying for relief under the statute has been either "petitioner"*fn87 or "applicant."*fn88

[41] Second, the bill created Chapter 14 of the Civil Practices and Remedies Code to provide fast-track procedures for handling and dismissing frivolous claims, and which outlines standards for determining whether a lawsuit is frivolous.*fn89 No criminal counterpart was enacted at that time or otherwise exists. Enacting guidelines for civil cases but not for criminal habeas actions is further evidence that the Legislature did not intend the forfeiture provision to apply in the criminal habeas context. Yet another indication that Chapter 14 was meant to apply only to civil actions is suggested by §14.014, which prohibits modification of the Chapter by Texas Supreme Court rule.

[42] Third, §14.002, entitled "Scope of Chapter," provides: "This chapter applies only to a suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate."*fn90 The significance of this statement is that Chapter 14's remedies involving the screening and dismissal of frivolous lawsuits apply only to lawsuits in which the costs have been waived due to indigence. In the civil system, a plaintiff is ordinarily required to pay filing and service fees before a lawsuit will be docketed by the court clerk.*fn91 Those fees are waived if the plaintiff files an affidavit (or unsworn declaration) of inability to pay the costs.*fn92 As discussed earlier, payment of fees is a financial disincentive to filing a frivolous lawsuit. As with the federal statute discussed earlier, the idea behind §14.002 is that inmates who can file lawsuits for free have no such disincentive and must, therefore, be subject to more rigorous procedures designed to screen out and dispose of frivolous actions.

[43] That type of reasoning does not apply well in the state habeas context. Currently, the Code of Criminal Procedure prohibits the court clerk from requiring a filing fee for habeas corpus applications.*fn93 That provision did not exist in 1995, when H.B. 1343 was enacted, and the bill analysis for the 1999 filing fee prohibition suggests that it was enacted because filing fees could be exacted from habeas applicants.*fn94 Nevertheless, we are unaware of any prevailing practice of district clerks in 1995 to require filing fees for post-conviction habeas corpus actions, and a 1994 Attorney General opinion stated that, while the district clerk was authorized under a catch-all provision to charge a "reasonable fee,"*fn95 failure to pay a fee - or file an affidavit of inability to pay - was not a ground for refusing to file a habeas application or for refusing to issue process under that application.*fn96 So the filing fee (or affidavit of inability to pay) did not serve the gatekeeping function in habeas cases that it serves in civil cases.

[44] Aside from the legislative history, there are other extratextual factors, but these carry little weight. We recognize that in 1996 the Mississippi Legislature passed a statute that is almost identical to the Texas good-time forfeiture provision*fn97 and that the Mississippi Supreme Court has upheld the application of that statute to habeas corpus actions.*fn98 But the focus of the Mississippi Supreme Court was solely on whether the applicant's claim was frivolous and whether the forfeiture of good time was constitutional; that court did not address why the statute was applicable to habeas corpus proceedings.*fn99 The Texas statute was passed before the Mississippi statute, and of course, before any Mississippi Supreme Court decision construing the statute; so, the Texas Legislature could not have been charged with notice of the parallel provision or of the Mississippi Supreme Court's implied construction of that provision. While the Mississippi Supreme Court's opinion is something to be considered, its decision cannot weigh heavily in our analysis in the face of overwhelming legislative history pointing to a civil-only focus for the Texas forfeiture provision.

[45] Finally, we observe that the evident purpose of the forfeiture statute - to reduce frivolous litigation - would be served by the statute's application to habeas proceedings. Every year, this Court is inundated with post-conviction habeas filings. In spite of the enactment of the abuse of the writ provisions of Article 11.07 §4, application numbers have continued to climb. In fiscal year 1995, 3,996 applications were filed in this Court; in fiscal year 2003, that number increased to 6,660.*fn100

[46] Yet, if the Legislature had intended for this statute to be used to reduce frivolous habeas applications, there could have been at least some mention of it in the legislative history. The legislative history is replete with the need to combat the tide of frivolous civil litigation and the statute's purpose in achieving that goal. If the Legislature had intended to serve the parallel goal of reducing frivolous habeas corpus applications, it would have been easy for someone, somewhere in the process, to have said so. Instead, the only mention of habeas proceedings is the suggestion that the issue of frivolous habeas actions had been addressed by §4 and that the gap that remained to be filled was with regard to civil cases.

[47] However useful this statute could be if applied to habeas proceedings,*fn101 we conclude that the Legislature did not contemplate its use in that context. We hold that §498.0045 does not apply to Article 11.07 habeas corpus proceedings.

[48] Applicant's present application for writ of habeas corpus is barred as a subsequent application under Article 11.07 §4. This application is dismissed.

[49] KELLER, Presiding Judge

[50] Publish


Opinion Footnotes


[51] *fn1 All references to Article 11.07 are to the Code of Criminal Procedure.

[52] *fn2 Art. 11.07 §4(a) bars consideration of subsequent applications unless certain requirements are met.

[53] *fn3 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

[54] *fn4 Id.

[55] *fn5 TEX. GOV'T CODE §311.023; Brown v. State, 943 S.W.2d 35, 38 (Tex. Crim. App. 1997).

[56] *fn6 TEX. GOVT CODE §498.0045(b).

[57] *fn7 97 S.W.3d 586, 589 (Tex. Crim. App. 2003).

[58] *fn8 TEX. GOV'T CODE § 311.011(b).

[59] *fn9 Lane v. State, 933 S.W.2d 504, 515, 515 n. 12 (Tex. Crim. App. 1996).


[61] *fn11 Art. 11.01 ("The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty"); Art. 11.07 §1 ("in which the applicant seeks relief from a felony judgment imposing a penalty other than death").

[62] *fn12 BLACK'S LAW DICTIONARY 895 & 1448 (7th ed. 1999).

[63] *fn13 BLACK'S LAW DICTIONARY 597 (7th ed. 1999)(adjective definition)(emphasis added); see also, Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968)("A procedure by habeas corpus to be relieved of imprisonment for contempt can in no legal sense be regarded as a suit or controversy between private parties. In such a proceeding the petition for a writ of habeas corpus is for the relief of the prisoner and the prisoner only").

[64] *fn14 See Art. 11.07 §3(b)("The clerk . . . shall . . . forward a copy of the application . . . to the attorney representing the state in that court, who shall answer the application not later than the 15th day after the date the copy of the application is received").

[65] *fn15 178 Mich. 288, 144 N.W. 491 (1913).

[66] *fn16 BALLENTINE'S LAW DICTIONARY 715 (3rd ed. 1969).

[67] *fn17 91 U.S. 367 (1876).

[68] *fn18 BARRON'S LAW DICTIONARY 264 & 463 (2nd ed. 1984).

[69] *fn19 144 N.W. at 491.

[70] *fn20 Id. at 492.

[71] *fn21 Id. at 491-492.

[72] *fn22 Id. at 492-493.

[73] *fn23 Id. at 492.

[74] *fn24 Id. at 493.

[75] *fn25 United States v. Safeway Stores, Inc., 140 F.2d 834, 838 (10th Cir. 1944); United States v. P.F. Coller & Son Corp., 208 F.2d 936, 938-939 (7th Cir. 1953).

[76] *fn26 Commonwealth v. Moore, 143 Mass. 136, 9 N.E. 25, 26 (1886)("suit" includes criminal proceedings for purposes of statute qualifying jurors); Kelliher v. People, 71 Colo. 202, 205 P. 274-275 (1922)( "suit" includes criminal proceedings for purposes of statute relating to the duties of sheriffs and coroners).

[77] *fn27 See TEX. GOVT CODE §311.011(a); Jones v. State, 979 S.W.2d 652, 657 (Tex. Crim. App. 1998).

[78] *fn28 See, e.g., Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003(guilty pleas); Ex Parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002)(collateral estoppel); Ex Parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001)(proceedings before the Court of Criminal Appeals).

[79] *fn29 Taylor, 36 S.W.3d at 887.

[80] *fn30 See, e.g., Miller v. State, 36 S.W.3d 503, 506 (Tex. Crim. App. 2001)(trial court); Rhoades v. State, 934 S.W.2d 113, 125 (Tex. Crim. App. 1996)(defense counsel); Fuentes v. State, 664 S.W.2d 333, 337 (Tex. Crim. App. 1984)(prosecutor).

[81] *fn31 See, e.g., Kellar v. State, 108 S.W.3d 311, 312 (Tex. Crim. App. 2003); Soliz v. State, 97 S.W.3d 137, 138 (Tex. Crim. App. 2003); Thompson v. State, 93 S.W.3d 16, 21 (Tex. Crim. App. 2001), cert. denied, 124 S.Ct. 250 (2003).

[82] *fn32 Gordon v. State, 801 S.W.2d 899, 915 n. 16 (Tex. Crim. App. 1990)("criminal lawsuit"); Thomas v. Crow, 862 S.W.2d 719, 722 (Tex. App.-Tyler 1993, no writ)(same); Hunt v. State, 160 Tex. Crim. 358, 271 S.W.2d 290, 292-293 (1954)("misdemeanor lawsuit").

[83] *fn33 TEX. AGRIC. CODE §§74.1041(d), 74.129; TEX. BUS. & COM. CODE §15.05(h); TEX. CIV. PRAC. & REM. CODE §§8.02, 15.002(a), 15.003(a), 31.007(a), 33.004(j), 103.105(a)(1), 104.004(b), 109.0015(b); TEX. EDUC. CODE §§51.967, 61.952(3)(A), 132.102(c) & (d); TEX. FAM. CODE §§8.057(b), 9.001(b), 9.102(b), 9.201(b), 156.004, 157.062(d)(2); TEX. FIN. CODE §§126.155(a), 392.301(b)(2), TEX. GOVT CODE §§51.943(c) & (d), 495.008(b)(5), 659.151(e), 1501.151; TEX. HEALTH & SAF. CODE §§242.252(b) & (e), 361.405(a)(2); TEX. HUM. RES. CODE §32.060(h); TEX. INS. CODE §§38.154(a)(3)(B), 38.156(3)(A)(I), 2602.260; TEX. LABOR CODE §402.084(b)(7);TEX. LOC. GOVT CODE §§41.003(b)(4), 51.003(a)(2), 283.057(a), 335.071(h), 351.016(b)(4)-(6); TEX. NAT. RES. CODE §61.025(a); TEX. OCC. CODE §§160.052(a)(2), 160.053(a), 164.201, 301.408(b)(2) & (d), 569.001(b), 1958.304; TEX. PROP. CODE §§5.008(b)(Question 5), 5.023(b), 92.003(a), 92.056(f)(2), 92.301(b)(4), 94.011(a), 94.156(f)(2), 207.003(b)(9), 209.008(e), 221.032(b)(12); TEX. TAX CODE §§5.05(d), 42.09(c), 111.207(a)(1); TEX. WATER CODE §§36.124(a)(2), 49.235(a)(2), TEX. INS., Arts. 9.48 §19(a), 21.21-2 §3(d), 21.28 §4(f) & (h); TEX. PROB. CODE §§146(e)(2), 367(c)(7)(a), 663, 681(4), 741(a), 782(b), 847(l), 852, 887(a) & (e).

[84] *fn34 See TEX. CODE CRIM. PROC. Arts. 42.032 §5(2), 42.09 §9.

[85] *fn35 TEX. PEN. CODE §38.12(d)(2)(D)("lawsuit of any kind"); TEX. WATER CODE §7.051(a)(2).

[86] *fn36 91 U.S. at 375-376.

[87] *fn37 Neitzke v. Williams, 490 U.S. 319, 324 (1989).

[88] *fn38 Ex parte Hoang, 872 S.W.2d 694, 699 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 863 (1994).

[89] *fn39 Kohl, 91 U.S. at 375.

[90] *fn40 Atty Gen. op. DM-295, 1994 Tex. AG LEXIS 469, *19 (June, 16, 1994).

[91] *fn41 Atty Gen. op. DM-295 at *20-21, *21 n. 13 (citing Ramzy; Ex parte Tail, 14 N.W.2d 840, 841 (Neb. 1944); Florida ex rel. Deeb v. Fabisinski, 152 So. 207, 209 (Fla. 1933); New York ex rel. Hauptmann v. Hanley, 274 N.Y.S. 813, 815 (Sup. Ct. 1934), affirmed, New York ex rel. Hauptmann v. Hanley, 274 N.Y.S. 824 (App. Div. 1934)).

[92] *fn42 Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284, 287 (1942).

[93] *fn43 Atty Gen. op. DM-295 at *22 (citing In rey Moy Chee Kee, 33 F. 377, 379 (C.C.N.D. Cal. 1887); McFarland v. Johnson, 27 Tex. 105, 109 (1863)).

[94] *fn44 Harris v. Nelson, 394 U.S. 286, 293-294 (1969); see also Atty Gen. op. DM-295 at *24.

[95] *fn45 See, e.g., Ex parte Tuley, 109 S.W.3d 388, 390 (Tex. Crim. App. 2002).

[96] *fn46 Ex parte Davis, 542 S.W.2d 192, 198 (Tex. Crim. App. 1976); See also Ex parte Donaldson, 86 S.W.3d 231, 233 (Tex. Crim. App. 2002)(Rules of Civil Procedure do not apply to criminal cases); but see Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (applying TEX. R. CIV. P. 18(a) to criminal cases).

[97] *fn47 Art. 11.07 §5.

[98] *fn48 House floor debates, second reading of H.B. 1343, April 5, 1995.

[99] *fn49 Id.

[100] *fn50 766 F.2d 179 (5th Cir. 1985).

[101] *fn51 Id. at 180.

[102] *fn52 Id.

[103] *fn53 Id.

[104] *fn54 Id. at 180-181.

[105] *fn55 Id. at 182.

[106] *fn56 Neitzke, 490 U.S. at 324 (quoting from §1915(d)).

[107] *fn57 Id. at 326 (internal quotes omitted; quoting Cruz v. Beto, 405 U.S. 319, 327 (1972)(Rehnquist, J. dissenting)).

[108] *fn58 The statute was subsequently amended in 1996. We address the 1979 version because that version was in effect at the time the federal cases in question were decided and at the time the Texas forfeiture provision was enacted.

[109] *fn59 See §1915(a)(1979).

[110] *fn60 Id.

[111] *fn61 See §1915, passim (1979).

[112] *fn62 See Spears, 766 F.2d at 180 (§1983 action); Neitzke, 490 U.S. at 320 (§1983 action).

[113] *fn63 Committee Report, Texas House Committee on Corrections, C.S.H.B. 1343, March 21, 1995. Examples cited include claims that prison officials failed to return inmate's fireworks, that an inmate was served chunky peanut butter instead of smooth, and that eggs were not cooked to inmate's satisfaction.

[114] *fn64 Id.

[115] *fn65 TEX. CIV. PRAC. & REM. CODE §§101.103(a), 104.004; TEX. GOVT CODE §402.024.

[116] *fn66 Art. 11.07 §3(b)("attorney representing the state in that court").

[117] *fn67 House Committee Report, supra.

[118] *fn68 Id.

[119] *fn69 See id.

[120] *fn70 Id.

[121] *fn71 Amended Committee Report, Texas Senate Committee on Criminal Justice, H.B. 1343, April 28, 1995.

[122] *fn72 See the respective committee hearings, supra.

[123] *fn73 Rep. Hightower, House Committee Hearing, tape side A, counter 346-348.

[124] *fn74 See Art. 11.07 §3(d)("If the convicting court decides that there are controverted previously unresolved facts...To resolve those issues the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection").

[125] *fn75 House Committee Hearing, tape side A, counter 615-617.

[126] *fn76 Id.

[127] *fn77 Texas Acts 1995, 74th Leg, ch. 378, §2 (§14.003(a)(2))("A court may dismiss a claim, either before or after service of process, if the court finds that . . . the claim is frivolous or malicious")(emphasis added).

[128] *fn78 See Michelle Brinkman, House Committee Hearing, tape side B, counter 144-145 ("monetary sanctions mean nothing because they have nothing").

[129] *fn79 See the respective committee hearings, passim.

[130] *fn80 House Committee Hearing, February 28, 1995, side A, counter 704-712.

[131] *fn81 Id.

[132] *fn82 See Ex parte Johnson, 811 S.W.2d 93, 97 (Tex. Crim. App. 1991)(applying TEX. CIV. PRAC. & REM. CODE, Chapter 132 to criminal habeas proceedings).

[133] *fn83 See Acts 1995, 74th Leg., ch. 378, §1 (creating §15.018); and passim; see also TEX. CIV. PRAC. & REM. CODE §15.019 (renumbered by Acts 1997, 75th Leg., ch. 165, § 31.01(3), from §15.018).

[134] *fn84 See TEX. CIV. PRAC. & REM. CODE, Chapter 15.

[135] *fn85 Texas Acts 1995, 74th Leg., ch. 378, §1 (§15.018(a))(emphasis added); see also TEX. CIV. PRAC. & REM. CODE §15.019(a).

[136] *fn86 Ex parte Paprskar, 573 S.W.2d 525, 527 (Tex. Crim. App. 1978), overruled on other grounds, Weiner v. Dial, 653 S.W.2d 786, 787 n. 1 (Tex. Crim. App. 1983).

[137] *fn87 TEX. CODE CRIM. PROC. Art. 11.07 §3 (1994).

[138] *fn88 TEX. CODE CRIM. PROC. Art. 11.07 §5 (1995).

[139] *fn89 See Acts 1995, 74th Leg., ch. 378, §2; TEX. CIV. PRAC. & REM. CODE §14.003.

[140] *fn90 Acts 1995, 74th Leg., ch. 378, §2; TEX CIV. PRAC. & REM CODE §14.002 (emphasis added).

[141] *fn91 TEX. R. CIV. P. 142 (filing fee) & 126 (service of process).

[142] *fn92 TEX. R. CIV. P. 126, 142, 145.

[143] *fn93 TEX. CODE CRIM. PROC. Art. 11.051.

[144] *fn94 Texas Office of House Bill Analysis; 76th Leg., H.B. 149, July 7, 1999. The Bill analysis stated: "Prior to the 76th Legislature, state law allowed a clerk of a court to require an individual who filed an application or petition for a writ of habeas corpus to pay a filing fee. H.B. 149 prohibits a clerk of a court from requiring a person who files an application or petition for a writ of habeas corpus to pay a filing fee."

[145] *fn95 Atty Gen. op. DM-295, *15 (citing TEX. GOVT CODE §51.319).

[146] *fn96 Id. at *16-*27 (opining that the filing fee requirements of the Rules of Civil Procedure do not apply). We note that, once the habeas application is under consideration, the judge trying the habeas corpus action has discretion to assess costs under TEX. CODE CRIM. PROC., Art. 11.50.

[147] *fn97 See Mississippi Laws 1996, ch. 350, § 1 (Miss. Code §47-5-138(3)(a)), Laws 1998, ch. 402 §1 (Miss. Code §47-138(3)(a)).

[148] *fn98 Tubwell v. Anderson, 776 So.2d 654, 659 (Miss. 2000); see also Tubwell v. Grant, 760 So.2d 687, 690-691 (Miss. 2000).

[149] *fn99 See Tubwell, 776 So.2d at 659; Tubwell, 760 So.2d at 690-691.

[150] *fn100 ANNUAL REPORT OF THE TEXAS JUDICIAL SYSTEM (1995: p. 101, 2003: p. 100).

[151] *fn101 The application is unquestionably "frivolous," as that term is understood in §14.003.