File: 020190 - From documents transmitted: 03/27/2003
IN THE SUPREME COURT OF TEXAS
............
No. 02-0190
............
Dr. Louis Gibson, Petitioner
v.
James Tolbert, Respondent
....................................................
On Petition for Review from the
Court of Appeals for the Tenth District of Texas
....................................................
Justice Enoch delivered the opinion of the Court.
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,
See Footnote 1 Without
See Footnote 2 we reverse the court of appeals' judgment and hold that an indigent inmate
does not have a right to appointed counsel in a civil case merely because the inmate's suit is against
an employee of the prison in which the inmate is incarcerated. I
Tolbert suffers from severe back problems. To accommodate his physical limitations, he was
initially assigned only to light work duty at the prison. After this initial physical assessment and
light work assignment, Gibson arrived at the prison as its medical director. He examined Tolbert
and reassigned him to farm detail. Tolbert avers that he suffered debilitating physical pain from the
hard labor this new assignment required. A physician's assistant working at the prison finally
referred Tolbert to a back specialist, who removed Tolbert from hard labor and returned him to light
work duty. Gibson, however, disregarded the specialist's diagnosis and placed Tolbert on farm
detail yet again. Alleging that he had been injured by Gibson's actions disregarding his physical
condition, Tolbert filed a pro se medical malpractice suit against Gibson in July 1999.
Tolbert prosecuted his case with some success, filing the petition and serving discovery
requests. At some point in the litigation, however, Gibson moved to dismiss the cause for, among
other things, Tolbert's failure to file an expert report under the Medical Liability and Insurance
See Footnote 3 Tolbert requested the trial court to appoint counsel, and also requested a thirty-
day extension to file an expert report. The trial court explicitly granted Tolbert's motion for
extension of time, giving him an additional thirty days from the date of the order. But the trial court
did not explicitly rule on the motion for appointed counsel, merely including in the order the general
statement that any relief not granted was denied. The trial court ultimately dismissed the cause in
March 2000, because Tolbert did not submit his expert report within the time period set by the court. Tolbert appealed, and the court of appeals reversed, holding that the fact that Tolbert was
suing an employee of the very facility in which he was incarcerated constituted exceptional
See Footnote 4 Gibson now brings the appeal to this Court.
II
The question is whether the trial judge in this civil case abused his discretion when he failed
to appoint counsel to represent Tolbert. To answer that question, we note that Texas has statutorily
See Footnote 5 in parental termination cases,
See Footnote 7 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
See Footnote 8
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
See Footnote 9 Appointment of counsel in these types of cases, then, is left to the discretion of the district courts under Texas Government Code
section 24.016.
Historically, we have "never held that a civil litigant must be represented by counsel in order
See Footnote 10 But we have 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
See Footnote 11 In any
See Footnote 12
See Footnote 13 Some courts of appeals, including the court below, have
concluded that the discretionary boundary of section 24.016 is similar to a court's inherent power
See Footnote 14
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, we decide 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.
III
Until this case, no court of appeals has attempted to positively define the meaning of
exceptional circumstances. And while several courts of appeals have considered whether
exceptional circumstances existed in a particular case, none, until this case, have concluded that
exceptional circumstances, in fact, existed. Rather, they have uniformly determined that the
See Footnote 15
Beyond what we stated in Travelers Indemnity Co. v. Mayfield, See Footnote 16 we also have 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
See Footnote 17 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.
Accordingly, we reverse the court of appeals' judgment. And because the only issue before the
Court is whether Tolbert was entitled as a matter of law to appointed counsel, we remand to the trial
court to dismiss Tolbert's action with prejudice.
Craig T. Enoch
Justice
OPINION DELIVERED: March 27, 2003
Footnote 1
67 S.W.3d 368, 372.
Footnote 2
Tex. R. App. P. 59.1.
Footnote 3
Tex. Rev. Civ. Stat. art. 4590i, § 13.01(d) & (e).
Footnote 4
67 S.W.3d at 372.
Footnote 5
See Tex. Fam. Code § 51.10.
Footnote 6
See id. § 107.013.
Footnote 7
See Tex. Health & Safety Code § 574.003.
Footnote 8
Tex. Gov't Code § 24.016.
Footnote 9
See generally Tex. Rev. Civ. Stat. art. 4590i.
Footnote 10
Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).
Footnote 11
Id.
Footnote 12
Id. at 592.
Footnote 13
Id. at 593.
Footnote 14
67 S.W.3d at 372; Knie v. Piskun, 23 S.W.3d 455, 461 (Tex. App._Amarillo 2000, pet. denied); Pedraza v.
Crossroads Sec. Sys., 960 S.W.2d 339, 341 (Tex. App._Corpus Christi 1997, no pet.); Coleman v. Lynaugh, 934 S.W.2d
Footnote 15
See, e.g., Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App._Waco 2002, no pet.); Hall v. Treon, 39 S.W.3d
Pedraza, 960 S.W.2d at 341; Coleman, 934 S.W.2d at 839.
Footnote 16
923 S.W.2d at 592.
Footnote 17
See Tex. Civ. Prac. & Rem. Code ch. 14.
File Date[03/27/2003]
File Name[020190]
File Locator[03/27/2003-020190]