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Click here for the full text of this decision FACTS:Ivo Nabelek, an inmate at a state correctional facility proceeding pro se and in forma pauperis, sought declaratory and injunctive relief to determine the validity and constitutionality of Texas Open Records Act 552.028. Nabelek alleged the District Attorney of Harris County (the DAHC) wrongfully denied him access to information in its possession under the act. Nabelek argued he was acting as his own attorney when he requested the information from the DAHC and his status as a pro se litigant entitled him to the information he sought. After holding a telephonic hearing, the trial court dismissed Nabelek’s suit as frivolous pursuant to Texas Civil Practice and Remedies Code 14.003(a)(2). Nabelek appealed. HOLDING:The court reforms the judgment to reflect the cause is dismissed “with prejudice.” As reformed, the judgment is affirmed. Nabelek argues the trial court erred in dismissing his claims as frivolous under 14.003(a)(2). The DAHC argued Nabelek failed to comply with 14.004 by not filing a declaration or affidavit identifying previous litigation. The DAHC also argued that Nabelek’s suit was frivolous and had no arguable basis in law because: 1. limitations barred Nabelek’s claims; 2. Nabelek’s interpretation of 522.028(a)’s attorney exception had no arguable basis in law; and 3. no arguable constitutional claim was stated. The court agrees with the DAHC that because there is no specific deadline for filing a suit challenging the denial of rights under the Texas Open Records Act under Texas Government Code Chapter 552, the four-year residual statute of limitations applies. The DAHC’s denial of Nabelek’s request for information under 552.027 of the Texas Open Records Act occurred six years prior to Nabelek filing suit against the DAHC. Consequently, the court holds that Nabelek’s suit was commenced well beyond the four-year statute of limitations period and is time-barred. The court next holds that Nabelek’s claims against the DAHC also lack an arguable basis in law because the 1999 amendment to 552.028, the subject of Nabelek’s constitutional attacks, was not in effect when he requested information from the DAHC in 1995 and 1996 and, with regard to his 2000 request, Nabelek did not seek information from the DAHC in that request pursuant to the Texas Open Records Act or state that he was acting as a pro se attorney on his own behalf when requesting information from the DAHC. Furthermore, the court points out that Nabelek is not a licensed attorney in the state of Texas and may not avail himself of the attorney exception within 552.028(a)(2). Therefore, the court concludes that Nabelek’s constitutional attacks on 552.028(a)(2) do not have an arguable basis in law and present, at most, only a theoretical dispute. Nabelek contends the trial court erred in failing to have the telephonic hearing on the DAHC’s motion stenographically or otherwise recorded. But the court finds, contrary to Nabelek’s assertions, that the record does not show he requested that the court reporter record the hearing. Similarly, with regard to Nabelek’s complaint regarding lack of notice of the hearing, the record shows he attended the hearing via telephone and did not object to the lack of proper notice of the hearing. The court holds that, by failing to request that the court reporter record the hearing or object to the reporter’s failure to record and by failing to object to a lack of notice of the hearing, Nabelek has failed to preserve these issues for review. Furthermore, even if Nabelek properly had preserved these issues for review, the court holds that they are without merit because a trial court is not required to conduct an oral hearing before dismissing a suit under 14.003 or ruling on a motion for summary judgment. Finally, the court finds that the trial court’s dismissal of Nabelek’s claims as frivolous rendered Nabelek’s pending motions moot and that because Nabelek cannot remedy the errors resulting in the dismissal of his suit, dismissal with prejudice is appropriate OPINION:Anderson, J.; Anderson, Hudson, and Frost, JJ. CONCURRENCE:Frost, J., concurring. “The court’s judgment in favor of appellee, District Attorney of Harris County, Texas, is correct, but the majority’s analysis of the issues raised by appellant Ivo Nabelek is flawed in some respects.”

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