IN THE

TENTH COURT OF APPEALS

No. 10-14-00102-CV

EX PARTE N.C.

_____________

From the 12th District Court

Walker County

Trial Court No. 26744

________________________________________________________________

No. 10-14-00153-CV

IN RE ALVIE ROBINSON

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Original Proceeding

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No. 10-14-00191-CV

BRENT ALAN MCLEAN, Appellant

v.

BRAD LIVINGSTON, ET AL, Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. C201400101

OPINION ON REHEARING

A motion for rehearing has been filed in each of these three proceedings. Each 

person who filed each of the three proceedings is an indigent inmate representing 
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 2

himself in the proceeding. Each proceeding was summarily dismissed because the 

inmate failed to comply with the basic requirements of Texas Civil Practice and 

Remedies Code Chapter 14 to file the proceeding. In this opinion on rehearing, we 

address the issue of whether we should reinstate each proceeding and thus circumvent 

the purpose of the statute. We deny each motion for rehearing.

In a special session in 2011, the legislature passed, and the Governor signed, a 

bill with the caption: “AN ACT relating to fiscal and other matters necessary for 

implementation of the judiciary budget as enacted by H.B. No. 1, Acts of the 82nd 

Legislature, Regular Session, 2011, and to the operation and administration of, and 

practice and procedures in courts in, the judicial branch of state government.” Acts 

2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012). As indicated 

by the caption, the bill included provisions that were designed to have an impact on the 

cost of operating the judicial branch. Included in that bill was a provision that clearly 

and specifically added proceedings filed in the appellate courts to the litigation being 

filed by inmates which would be summarily dismissed by the appellate court if the 

inmate failed to comply with the requirements of Chapter 14 of the Texas Civil Practice 

and Remedies Code. The bill became effective on January 1, 2012. See Acts 2011, 82nd 

Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012).

After the change in the statute occurred but prior to its effective date, we 

endeavored to warn the inmate population of this statutory change. See Altschul v. 

TDCJ - Inmate Trust Fund Div., No. 10-11-00084-CV, 2012 Tex. App. LEXIS 2025, *3 (Tex. 
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 3

App.—Waco Mar. 14, 2012, pet. denied) (mem. op.) ("Section 14.002 has also been 

amended to make clear that such an affidavit is also required if the new action is filed in 

a court of appeals."). After a period of time, we began to dismiss proceedings without 

notice and opportunity to cure the defect, see Douglass v. Turner, 441 S.W.3d 337 (Tex. 

App.—Waco 2013, no pet.); but later added a footnote explaining that a motion for 

rehearing or a petition for review could be filed and specified the timetable for doing 

either. See Reed v. Ford, No. 10-13-00279-CV, 2013 Tex. App. LEXIS 11888 (Tex. App.—

Waco Sept. 19, 2013, no pet.) (mem. op.). During this extended time period, we would 

grant the motion for rehearing and reinstate the appeal if the inmate corrected the 

deficiency at the time the motion for rehearing was filed. See e.g. Atkins v. Herrera, Nos. 

10-13-00283-CV & 10-13-00284-CV, 2013 Tex. App. LEXIS 12385 (Tex. App.—Waco Oct. 

3, 2013) (mem. op.) (withdrawn by order issued Feb. 6, 2014) (not designated for 

publication). 

We took these steps during the first three years of implementing this statutory 

amendment to allow news of the change to be more widely disseminated within the 

inmate population. Maybe we were wrong to be so lax when the purpose of the 

amended legislation was to prevent the expenditure of scarce judicial resources on 

frivolous proceedings filed by inmates, thus allowing the appellate courts to focus 

limited resources on proceedings that merited review, including those filed by other 

inmates who had fulfilled the minimal statutory requirements to file a proceeding in the 

appellate court. 
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 4

We have expended judicial resources during this lengthy implementation period 

that were not required to be expended under a straight forward application of the 

statute. The statute is not difficult for an inmate to comply with. These same 

procedures have been required in trial courts since 1995. Nevertheless, failure to 

comply with this same statute in proceedings filed in trial courts continues to be a 

common reason for those cases to be dismissed—years after the statute was made 

applicable to inmate filings in the trial courts. 

It is now over three years after the effective date of the statutory amendments 

that added these requirements to actions filed in the appellate courts. The number of 

deficient inmate filings, nevertheless, seems to be increasing rather than decreasing. 

These three proceedings are examples of the problem as each suffers from the same 

deficiency: failure to comply with the simple requirements of the statute to file the 

proceeding. Maybe we were overly optimistic in our initial assessment that inmates 

would learn of the minimum requirement to file appellate proceedings as indigent 

inmates representing themselves.

Additionally, our experience in those proceedings in which a motion for 

rehearing was granted has confirmed the need for a more rigorous application of the 

statute as written and interpreted by case law. For example, a case was dismissed in 

October of 2013 and reinstated after a motion for rehearing was granted in March of 

2014. After three months of the inmate insisting that a reporter’s record be filed, and 

after numerous hours of court resources being expended, the Court discovered that the 
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 5

inmate had requested the reporter’s records for hearings held in 1988, 1989, and 1990 

that were no longer available and had not requested a reporter’s record from any 

hearing pertaining to the order at issue in the appeal. The inmate finally submitted a 

brief on the clerk’s record alone in October of 2014, a full year after the case was 

originally and properly dismissed, and the case remains pending, awaiting a brief filed 

by the State. See Keeter v. State, No. 10-13-00310-CV.

Three years of education about the statutory requirements is long enough. The 

statute clearly authorizes this Court to summarily dismiss a proceeding that does not 

comply with the statute when it is filed. If the intended benefits of the statute are to be 

realized, we must be willing to require the inmate to comply with the statute or suffer 

the consequences of the failure to comply. Accordingly, we deny the motions for 

rehearing.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Davis dissenting)

Motions denied

Order issued and filed January 22, 2015