Can An Inmate Sue a Prison for Basketball Injury In Texas ?

In Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. Supp. 1974), Herring, a prisoner, sued the Texas Department of Corrections after he sustained an injury while participating in a basketball game. Herring alleged that the State was negligent for failing to provide adequate medical care. The State's motion for summary judgment was granted on the grounds that Herring did not plead a viable cause of action under the Tort Claims Act. The Supreme Court determined that it was erroneous to grant summary judgment against Herring when Herring was not given the opportunity to amend his pleadings. In reaching this conclusion, the court remarked: This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff's pleadings, as here, fail to state a cause of action. to do so would revive the general demurrer discarded by Rule 90, Texas Rules of Civil Procedure. Id. at 10. Thus, the court determined that, when the basis for a dismissal is the failure to state a cause of action, the defendant must first file a special exception. If the special exception is sustained, then the plaintiff must be given an opportunity to amend his or her pleadings before the case can be dismissed for failure to state a cause of action. See Herring, 513 S.W.2d at 9-10. A litigant cannot be denied access to the courts simply because he is incarcerated. Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989, no writ). The right of access to courts, however, does not unconditionally give an inmate the right to personally appear, especially if the merits can be determined without his presence. Byrd v. Attorney Gen. of Tex., 877 S.W.2d 566, 569 (Tex. App.--Beaumont 1994, no writ). At the appropriate time, when a hearing or a trial has been set, the trial court must make certain inquiries into matters such as the necessity of personal appearance for the presentation of the case and the existence of any security risks to decide whether to obtain the presence of the inmate. Nichols, 776 S.W.2d at 623. Particularly relevant to the trial court's determination is whether denial of an appearance would foreclose a litigant's right to be heard at all. Id. If the inmate is not allowed to appear personally, then the inmate should be allowed to proceed by affidavit, deposition, telephone or other effective means. Byrd, 877 S.W.2d at 569.