Opinion
No. 12-04-00051-CV
Opinion Delivered May 25, 2005.
Appeal from the 349th Judicial District Court of Anderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
MEMORANDUM OPINION
Ernest D. Newman, an inmate in the Texas Department of Criminal Justice-Institutional Division ("TDCJ"), proceeding pro se, filed an in forma pauperis suit against Raynaldo Castro, Richard K. Thompson, III, B. Elmore, Anthony M. Holmes, and Jason T. Heaton. Newman appeals the trial court's order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, section 14.003. Newman raises eight issues on appeal. We affirm.
BACKGROUND
Newman is an inmate. While incarcerated, Newman filed a civil suit against Castro, Thompson, Elmore, Holmes, and Heaton (collectively "Appellees"). In his lawsuit, Newman alleges that Appellees, through discrimination, violated his rights under the Americans with Disabilities Act. See 42 U.S.C.A. §§ 12101, 12112 (West 1995). Newman did not specify in his petition what relief he was seeking from Appellees. In conjunction with his original petition, Newman filed a declaration purportedly in compliance with Texas Civil Practices and Remedies Code, section 14.004, in which he stated, "I declare under penalty of perjury that this is my first suit brought in a district, county, justice of the peace, or small claims court."
On December 15, 2003, without conducting a hearing, the trial court found that Newman's suit was frivolous or malicious and dismissed it with prejudice pursuant to Texas Civil Practice and Remedies Code, section 14.003. This appeal followed.
DISMISSAL PURSUANT TO TEXAS CIVIL PRACTICE AND REMEDIES CODE CHAPTER 14
In his first, third, fourth, fifth, sixth, seventh, and eighth issues, Newman argues that the trial court's dismissal was improper. We review the trial court's dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya , 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan , 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. Johnson v. Lynaugh , 796 S.W.2d 705, 706-07 (Tex. 1990); Birdo v. Ament , 814 S.W.2d 808, 810 (Tex.App.-Waco 1991, writ denied). The trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson , 894 S.W.2d 812, 814-15 (Tex.App.-Tyler 1994, no writ).
We have construed Newman's issues liberally in the interest of justice.
Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. TEX. CIV. PRAC. REM. CODE ANN. § 14.002(a) (Vernon 2002); Hickson , 926 S.W.2d at 398. Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the court finds that the claim is frivolous or malicious. See TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the "same operative facts." Id. at § 14.003(b)(4). To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought and stating the "operative facts" upon which relief was sought. Id. at § 14.004(a)(2)(A). Furthermore, the declaration must state the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise. Id. at § 14.004(a)(2)(D).
Chapter 14 does not apply to suits brought under the Family Code. TEX. CIV. PRAC. REM. CODE ANN. § 14.002(b) (Vernon 2002).
In the case at hand, Newman's unsworn declaration does not comply with Texas Civil Practice and Remedies Code, section 14.004. Newman filed a declaration in which he stated that the instant suit was his "first suit brought in a district, county, justice of the peace, or small claims court." However, Section 14.004(a)(1) does not relate only to lawsuits filed in district courts, county courts, justice of the peace courts, and small claims courts. Id. Section 14.004(a)(1) plainly states that the affidavit must identify each previous lawsuit filed. Id. As such, Newman's declaration does not satisfy the requisites of Section 14.004(a)(1) because it was limited to lawsuits filed only in specific state courts. It failed to indicate, for instance, whether Newman had ever filed a lawsuit in federal court similar to his instant suit. See, e.g., Butler v. Texas Dep't of Criminal Justice , No. 12-01-00243-CV, 2002 WL 335228, at *2 (Tex.App.-Tyler Feb. 28, 2002, no pet.) (not designated for publication) ("A declaration . . . which does not set forth the requisite details about previous lawsuits filed by that inmate, even if the only detail is that no previous lawsuits have been filed, does not comport with the requirements of section 14.004."). Thus, the trial court was unable to consider whether Newman's current claim was substantially similar to his previous claims, if any.
When an inmate files an affidavit or declaration that fails to comply with the requirements of section 14.004, "the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous." Bell , 962 S.W.2d at 158. The burden to provide such information rests on the pro se litigant. See, e.g., Clark v. J.W. Estelle Unit , 23 S.W.3d 420, 422 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (refusing to hold that a trial court must sift through numerous documents in order to find the information required by section 14.004). Accordingly, we hold that the trial court did not abuse its discretion when it dismissed Newman's suit. Id. Newman's first, third, fourth, fifth, sixth, seventh, and eighth issues are overruled.
Newman's error could have been remedied through more specific pleading. Therefore, the trial court's dismissal with prejudice was improper. See Thomas v. Skinner , 54 S.W.3d 845, 846-47 (Tex.App.-Corpus Christi 2001, pet. denied).
BILL OF COSTS
In his brief, Newman designated his second issue, which stated as follows:
The second issue is the clerk has failed to provide copies of her record as to why the charges were applied to this action or case as she has only showed me what I was charged for and I am requesting copies of what was done by these persons as I did request a copy of the court reporters record which she has failed to provide.
A review of the remainder of Newman's brief reveals no further reference to his second issue. As such, Newman has waived the issue on appeal. See TEX. R. APP. P. 38.1(h). Yet, even absent waiver, our review of the clerk's record indicates that a Bill of Costs was included in a supplement thereto. Moreover, inasmuch as Newman appears to complain of an act of the district clerk, even if he had argued such an issue, we would be without jurisdiction to consider it. Newman's second issue is overruled.
Liberal construction in the interest of justice is not possible where there is total lack of argument concerning a particular issue. Texas Rule of Appellate Procedure 38.1 (h) requires clear and concise argument for the contentions made in addition to a concise statement of all issues presented for review. See TEX. R. CIV. P. 38.1(e), (h).
The jurisdiction of this court of appeals is, except where otherwise specially provided, appellate only. See Thorp Springs Christian College v. Dabney , 37 S.W.2d 193, 196 (Tex.Civ.App.-Fort Worth 1931, no writ); TEX. GOV'T. CODE ANN. § 22.220(a) (Vernon 2004). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail , 435 S.W.2d 624, 625-26 (Tex.Civ.App.-Tyler 1968, no writ); see also Walker v. Koger , 131 S.W.2d 1074, 1074 (Tex.Civ.App.-Eastland 1939, writ dism'd) (The subject matter of an assignment of error is some ruling or action of the court). We lack appellate jurisdiction over an act of the district clerk. Furthermore, the clerk is not responsible for filing the reporter's record. See TEX. R. APP. P. 35.3(b).
CONCLUSION
The trial court's dismissal of Robinson's suit with prejudice was improper. We modify the trial court's order of dismissal by deleting the words "with prejudice" and substituting in their place the words "without prejudice." Having overruled Robinson's issues one, two, three, four, five, six, seven, and eight, we affirm the trial court's dismissal order as modified.