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Civil Litigation No. 02-0190, 3/27/2003. Click here for the full text of this decision FACTS: James Tolbert is an indigent inmate who filed a pro se medical-malpractice claim against Dr. Louis Gibson, a prison doctor who provided medical services to Tolbert. Tolbert asked the trial court to appoint counsel. The motion was never granted, and the trial court later dismissed the case. Tolbert appealed only the denial of appointed counsel. The court of appeals reversed the dismissal, holding that Tolbert’s civil suit was an “exceptional case” requiring appointed counsel. HOLDING: Reversed and remanded. The question is whether the trial judge in this civil case abused his discretion when he failed to appoint counsel to represent Tolbert. The court notes that Texas has statutorily provided for appointed counsel in juvenile delinquency cases, in parental termination cases, and in cases in which application for court-ordered mental health services has been made. The Texas Legislature has also provided for at least the possibility of appointed counsel in other civil matters by conferring upon a district court judge the discretion to “appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause.” Regarding medical-malpractice actions, the Legislature has not expressly required appointed counsel for indigent plaintiffs, though it has imposed unique procedural hurdles for a plaintiff to clear, such as requiring the plaintiff to provide an expert report. Appointment of counsel in these types of cases, then, is left to the discretion of the district courts under Texas Government Code �24.016. The court has “never held that a civil litigant must be represented by counsel for a court to carry on its essential, constitutional function.” Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590 (Tex. 1996). The court has suggested, in the context of discussing the courts’ inherent power to appoint counsel in civil cases, that under exceptional circumstances, “the public and private interests at stake [may be] such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant.” In any event, the court has not addressed any limits to the courts’ discretionary authority to appoint counsel, or “the reach of [�24.016].” Some courts of appeals, including the court below, have concluded that the discretionary boundary of �24.016 is similar to a court’s inherent power to appoint counsel – counsel may be appointed in cases in which exceptional circumstances exist. Along this line, the parties in this case assume in their briefing that the trial court’s discretion to appoint counsel in a civil case is bounded by exceptional circumstances. That is to say, the parties argue over whether Tolbert’s circumstances are exceptional, thus entitling him to appointed counsel. Without expressly concluding that this assumption is correct, the court decides whether the trial court’s failure to appoint counsel was an abuse of its discretion in the light of whether Tolbert’s circumstances are exceptional. Beyond what was stated in Travelers Indemnity Co. v. Mayfield, the court has never addressed what “exceptional circumstances” warranting appointed counsel might be. That may simply be because what is “exceptional” is by definition rare and unusual – something not easily identified by a general rule. Only by evaluating the unique circumstances of a given civil case could a court ever determine that it has no reasonable alternative but to appoint counsel. In short, it is easier to determine what is not exceptional than to pronounce a general proposition on what would be exceptional. This case is an obvious example. Inmate suits against prison personnel, rather than rare and unusual, are common. In fact, the Legislature enacted laws in an effort to curb this particular area of litigation excess. The mere fact that an indigent inmate brings a cause of action against an employee of the prison in which the inmate is incarcerated does not constitute exceptional circumstances such that it warrants appointed counsel. Furthermore, plaintiffs in medical-malpractice cases are routinely represented by counsel on contingent-fee contracts. As long as his claims against Gibson were meritorious, Tolbert’s indigency should not have prevented him from employing able counsel. The trial judge did not abuse his discretion by failing to appoint counsel for Tolbert. OPINION: Enoch, J., delivered the opinion of the court.

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