Date: 07-10-2017

Case Style:

Case Number: 02-16-00399-CV

Judge: Mark T. Pittman

Court: Texas Court of Appeals, Third District on appeal from the 48th District Court of Tarrant County

Plaintiff's Attorney: Donald W. Read, pro se

Defendant's Attorney: John Stoutimore

Description: Appellant Donald W. Read appeals from the trial court’s dismissal of his
suit brought against Appellee Timothy W. Verboski,1 a witness in the criminal trial
that resulted in Read’s conviction for driving while intoxicated. Upon Verboski’s
motion, the trial court dismissed Read’s suit under chapter fourteen of the civil
1In Read’s original petition, he incorrectly spelled Verboski’s last name as
“Verbuski.”
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practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)
(West 2017). We affirm.
I. Background
On the night of February 17, 2013, Verboski called the police to report an
accident involving Read’s vehicle. Read v. State, No. 11-13-00344-CR, 2015 WL
6121536, at *1 (Tex. App.—Eastland Oct. 15, 2015, pet. ref’d) (mem. op., not
designated for publication). The police report contained a statement by Verboski
to the police officer that he did not witness the accident but drove by the scene
after it occurred. The police report recited that Verboski “stated that he [had]
observed an older SUV had ran off of the road into the ditch and was stuck.”
[Emphasis added.] At Read’s criminal trial, Verboski testified that he saw Read’s
vehicle in a ditch on his drive home from work on the night of February 17.
Verboski then stopped and spoke to Read and noticed that Read’s speech was
slurred and that he staggered. Id. Verboski then called 9-1-1. Id. The police
officer who responded to Verboski’s call performed field sobriety tests on Read
and then arrested him for driving while intoxicated. Read was subsequently
convicted of driving while intoxicated, felony repetition.
Read filed this civil suit against Verboski alleging that he had been
wrongfully convicted because of Verboski’s false statement recited in the police
report and his subsequent perjury at Read’s trial. Specifically, Read alleged that
Verboski’s statement in the police report was false when he told the officer that
“he observed an older SUV had ran off the road into the ditch and was stuck” and
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then later, “contradicting” himself, stated that “he did not witness the accident but
drove past it after it had happened.” According to Read, Verboski “did not see
exactly what happened.” By supplemental petition, Read also alleged that
Verboski falsely reported to police that his vehicle had run off the road when
Verboski had not witnessed the accident. Read further alleged that Verboski’s
testimony led to his conviction, and he sought compensation under chapter
103 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code
Ann. § 103.001 (West Supp. 2016) (providing compensation to persons who
have been wrongfully convicted).
In response to Read’s lawsuit, Verboski filed a motion to dismiss. He
alleged that dismissal was proper under both chapters thirteen and fourteen of
the civil practice and remedies code but ultimately urged the trial court to dismiss
the suit under chapter fourteen. See Tex. Civ. Prac. & Rem. Code Ann.
§ 13.001 (West 2017) (providing for dismissal of a frivolous suit brought by an
indigent person), § 14.003(a) (providing for dismissal of malicious or frivolous
suits by indigent inmates). Verboski argued that any statements made in the due
course of a judicial proceeding cannot form the basis of a suit for damages for
defamation. As such, he argued, Read’s suit had no legal basis and was
therefore frivolous.
The trial court granted the motion without a hearing and dismissed Read’s
case. Read now appeals.
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II. Dismissal of Frivolous or Malicious Suits under
Chapter 14 of the Civil Practice and Remedies Code
Read does not challenge the applicability of civil practice and remedies
code chapter fourteen to his suit. Under section 14.003 of that chapter, a court
may dismiss a claim if it finds that the claim is frivolous or malicious. Tex. Civ.
Prac. & Rem. Code Ann. § 14.003(a). A claim is frivolous or malicious for
purposes of the chapter if the claim has no arguable basis in law or in fact.
Id. § 14.003(b).
We review a dismissal under chapter fourteen for abuse of discretion, but
we review de novo the legal question of whether a claim has an arguable basis in
law. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010,
no pet.). We affirm the dismissal if it was proper under any legal theory. Id.
III. Discussion
Read raises two points on appeal. In his first point, he argues that
although Verboski claimed in his motion to dismiss that Read’s suit was a
defamation suit, in fact his suit pertains to a wrongful conviction “based on crimes
. . . Verboski committed in [a] false report to peace officers and perjured
testimony at trial.” In his second point, he argues that “[the p]rosecution has no
authority to grant absolute immunity to allow crimes to be committed, rather [it]
has special responsibility to make timely disclosure of evidence that negates or
mitigates [the] guilt of [the] defendant.”
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A. As a Matter of Law, Read Cannot Recover Compensation from
Verboski under Chapter 103 of the Civil Practice and Remedies Code.
Read argues under his first point that although any communication made
in the due course of a judicial proceeding is absolutely privileged, that rule does
not preclude a plaintiff from pursuing other remedies at law, such as a claim
under civil practice and remedies code chapter 103. Section 103.001 of that
chapter sets out the criteria a person must meet to be entitled to compensation
under chapter 103. See Tex. Civ. Prac. & Rem. Code Ann. § 103.001. Even if
Read met the criteria for compensation under that section, the chapter does not
provide a remedy to recover compensation from private persons. A person
seeking compensation under this chapter must file an application for
compensation with the Texas Comptroller of Public Accounts. Id.
§ 103.003 (West Supp. 2016). The comptroller determines the eligibility of the
claimant to receive compensation and the amount of compensation owed, and
the comptroller makes the compensation payment to the claimant. Id.
§§ 103.051, 103.151 (West Supp. 2016). Because, as a matter of law, Read
cannot recover compensation from Verboski under chapter 103, his claim for
such compensation has no arguable basis in law and is therefore frivolous. We
overrule the part of his first point relying on chapter 103.
B. Read’s Claim for Damages Has No Arguable Basis in Law.
As acknowledged by Read, statements made during judicial proceedings
are absolutely privileged and cannot serve as the basis of a suit for damages.
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Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942) (“[W]here
there is an absolute privilege, no action in damages for language, oral or written,
will lie. . . . Any communication, oral or written, uttered or published in the due
course of a judicial proceeding is absolutely privileged.”); Clark v. Jenkins,
248 S.W.3d 418, 431 (Tex. App.—Amarillo 2008, pet. denied) (“[A]bsolutely
privileged communications are not actionable and may not form the basis for civil
liability.”). Read pleaded no basis, other than chapter 103, under which Verboski
could be held liable for damages for his testimony. His suit for damages based
on such testimony is without any arguable basis in law, and we therefore overrule
Read’s first point as to his claim for damages against Verboski based on
Verboski’s testimony at Read’s criminal trial.
Likewise, Read’s claim for damages based on Verboski’s police report also
has no arguable basis in law. Verboski’s statement to the police is entitled to a
qualified privilege. See Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App.—
San Antonio 1997, no writ) (“When a communication of an alleged wrongful act is
made to an official authorized to protect the public from such act, that
communication is entitled to only a qualified privilege.”). However, even if
Verboski’s statement were false, Read cannot show harm as a matter of law. It
was not Verboski’s statement that he did or did not see the accident that led to
Read’s arrest and conviction.2 Verboski reported his observations to the police,
2We understand Read’s complaint against Verboski to be that by saying he
had seen a vehicle that had run off the road, Verboski was stating that he also
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but it was the responding police officer’s investigation that led to Read’s arrest.
The police officer arrested Read because she “could smell a strong odor of an
alcoholic beverage coming from [Read’s] breath and person,” “[h]is eyes were
red and watery and appeared droopy,” he slurred his speech, he “was having
difficulty walking around the vehicle,” and he failed field sobriety tests. Because
Read cannot show that he suffered damages as a result of Verboski’s statement
that Read’s vehicle had “ran off the road into a ditch,” his claim has no arguable
basis in law. We therefore overrule the remainder of Read’s first point.
C. Read Cannot Recover from Verboski for Actions of the State as a
Matter of Law.
Read makes four arguments in support of his second point, all of which
claim that Verboski is somehow liable for the acts or failures to act by the State in
Read’s prosecution.
First, he asserts that Texas provides for criminal prosecution for perjured
testimonial statements and that Verboski’s police report and trial testimony
violated criminal codes “of which [Read] has be[en] victimized.” This argument
does not provide an arguable basis in law for Read’s claims. Even if Verboski’s
statements constituted perjury—and we do not agree that the record reflects
perjured testimony—Read has no authority to bring a private action to criminally
witnessed the vehicle leaving the road. We disagree and do not read Verboski’s
statements to the police at the scene of the accident and later his testimony at
trial as contradictory. A statement that one has seen a vehicle in a ditch—that is,
that it has run off the road—is not a statement that one witnessed the vehicle
leaving the road.
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prosecute Verboski for such perjury. See Tex. Code Crim. Proc. Ann. arts. 2.01,
2.02 (West 2005) (district attorneys and county attorneys have authority to
represent the State in criminal cases); Linda R.S. v. Richard D., 410 U.S. 614,
619, 93 S. Ct. 1146, 1149 (1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”).
Second, Read argues that the rule of absolute privilege for statements
made in judicial proceedings does not apply to his suit for wrongful imprisonment.
But Read did not allege a claim for false imprisonment; Verboski neither arrested
nor detained Read nor clearly directed or requested the arrest, and Read did not
allege that he had. See Dangerfield v. Ormsby, 264 S.W.3d 904, 910 (Tex.
App.—Fort Worth 2008, no pet.) (setting out the elements for false
imprisonment). Read’s complaint was based on Verboski’s statements that he
did not see the accident, not on any request by Verboski to arrest Read. This
argument therefore does not show that Read’s suit has an arguable basis in law.
Third, Read asserts that the Texas constitution provides a right to
restitution for crime victims and protects the right to petition for redress of
grievances. The sections of the constitution on which he relies do not provide
him with the right to recover damages from Verboski for a claim based on
Verboski’s police report or trial testimony. See Tex. Const. art. I, § 27 (“The
citizens shall have the right . . . to . . . apply to those invested with the powers of
government for redress of grievances or other purposes”), § 30 (providing that
crime victims have the right of restitution). Read’s suit against Verboski is not an
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application to the government for redress, and Read cannot unilaterally declare
himself to be a crime victim and sue Verboski in civil court for restitution under
the constitution. See Tex. Const. art. I, § 30 (providing that “[t]he state, through
its prosecuting attorney, has the right to enforce the rights of crime victims”). As
such, these constitutional provisions do not provide any arguable basis in law for
Read’s claims.
Fourth, referencing Verboski’s “contradictory false police 911 emergency
report,” Read argues that prosecutors have a constitutional duty to correct known
false evidence. Relatedly, Read complains that the police report used by the
State in obtaining his conviction was wrongfully modified by the deputy who
wrote the report. However, Read’s arguments about correcting false evidence do
not challenge any acts by Verboski. Verboski is not a prosecutor and did not
prosecute Read’s criminal trial. Further, Verboski did not write or modify the
police report. Thus, Read’s assertions do not provide an arguable basis in law
for his claims.
We overrule Read’s second point and hold that the trial court did not err by
dismissing Read’s suit. Read’s lawsuit against Verboski is frivolous.

Outcome: Having overruled Read’s two points, we affirm the trial court’s order of
dismissal.

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