Opinion filed August 31, 2012



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00 290

- CV

__________ ALEJANDRO ALBERTO MARTINEZ , Appellant

V.

DIRECTOR BRAD LIVINGSTON ET AL. , Appellee s

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 09

- 11

- 18279

M E M O R A N D U M O P I N I O N Alejandro Alberto Martinez appeals from an order in which the trial court dismiss ed
, with prejudice
, his pro se, in forma pauperis , suit under Chapter 14 of the Texas Civil Practice and
Remedies Code. We find that the trial court erred when it dismiss ed the suit with prejudice . We modify the order to delete the holding that the dismissal is with prejudice and
, as modified,
affirm

. Background Appellant is an inmate of the Texas Department of Criminal Justice
, Institutional Division (TDCJ). He filed a lawsuit on November 9 , 2009 , against Brad Livingston and several2

other TDCJ employees, in which he alleg ed that his civil rig hts had been violated in the manner in which his disciplinary hearings were held

. He also filed copies of various step one and step two grievance forms that he had previously submitted to TDCJ. Appellant filed a motion for default judgment on Dec ember 9, 2009. The defendants filed their answer s on February 24,
2010 , and April 15, 2010. On May 1 9 , 2010, the trial court ordered the a ttorney g eneral to
review the case
, to file an amicus curiae brief
, and to advise the court whether Appellant’s pleadings met all of the requirements of Chapter 14 of the Texas Civil Practice and Remedies
Code. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. ch. 14 (West 20 02 & Supp. 2012 ).
The a ttorney g eneral filed the amicus curiae brief o n July 19, 2010, and told the court that Appellant failed to comply with S ections 14.00 5 (a)(1) and 14.00 4 of Texas Civil Practice and
Remedies Code

. Without conducting a hearing, t he trial court dismissed A ppellant ’ s lawsuit “with prejudice” because he “ failed to satisfy all statutory requirements under Chapter 14 of the
Texas Civil Practice and Remedies Code. ” This appeal followed.
Discussion In four issues, Appellant argues that the trial court ’ s dismissal was improper. 1 We generally review a trial c ourt ’ s dismissal of an inmate ’ s suit under Chapter 14 for abuse of
discretion. Sullivan v. Owens , No. 11

- 09

- 00208

- CV, 2011 WL 2409311 , *2 (Tex. App.

— Eastland June 16, 2011, no pet.) (citing Wilson v. TDCJ

– ID , 268 S.W.3d 756, 758 (Tex. App.

— Waco 2008, no pet.); Bishop v. Lawson , 131 S.W.3d 571, 574 (Tex. App.

— Fort Worth 2004, pet. denied) ; Thompson v. T ex. Dep’t of Criminal Justice

- Institutional Div.
, 33 S.W.3d 412, 414 (Tex. App.

— Houston [1st Dist.] 2000, pet. denied) )

. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.
Garcia v. Martinez , 988 S.W.2d 219, 222 (Tex. 1999). We will affirm a dismissal if it was proper under any legal theory. Johnson v. Lynau gh , 796 S.W.2d 705, 706

- 07 (Tex. 1990). 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)

.

1 We have construed Appellant ’s issues liberally in the interest of justice

.3

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 declara tion of inability to pay costs.
Section 14.002(a). Section 14.005 requires that an inmate file (1) a n affidavit or unsworn declaration stating the date that the grievance was filed and the date that the written decision was received by the inmate and (2) a copy of the written decision from the grievance system. Id. § 14.005(a)

. In his complaint, Appell ant listed the grievances he had previously filed with TDCJ by
their ten

- digit grievance numbers

. He also filed copies of the step one and step two grievance
forms that he had submitted. The written decisions from the grievance system are included in
those forms

. Appellant’s complaint is subscribed by Appellant as true under penalty of perjury
and
, thus
, appears to fit the definition of “unsworn declaration.” T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 132.001. However, Appellant’s unsworn declaration did no t include the date that he filed each grievance and the date that he received e ach written grievance decision. Id. § 14.005(a)(1)

. T he copies of the step one and step two grievance forms contain the information required by S ection 14.005 that Appellant’s unsworn declaration lacks. Appellant’s unsworn declaration references these forms by the ten

- digit numbers that correspond to the numbers on the filed copies of the grievance forms. However, we do not reach the issue of whether Appellant
subs tantial ly compli ed because Appellant’s pleadings contain an additional deficiency. Appellant failed to comply with Section 14.004. The purpose of Section 14.004 is to assist the trial court in determining whether a suit is malicious or frivolous under
S ection 14.003(a ). Hickson v. Moya , 926 S.W.2d 397, 399 (Tex. App.

— Waco 1996, no writ). 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. Section 14.003(a)(2)

. 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 . § 14.00 3(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 declaration describing all other suits the inmate has brought and stating the “operative facts ” upon which relief was sought. Id

. § 14.004(a)(2)(A). Appellant did not file a separate affidavit or declaration in which he identified each action previously brought by him in which he was not represented by an attorne y. Appellant argued in4

his answe r to the a ttorney g eneral that his original complaint satisfied the requirements of Chapter 14 because it “was sworn in [its] total content under penalty of perjury.” However, the complaint did not contain any statement s regarding previous claims.
When a n inmate files an affidavit or declaration that fails to c omply with the requirements of S ection 14.004, “the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous.” Bell v. Tex. Dep ’ t of
Criminal Justice

- Ins titutional Div. , 962 S.W.2d 156, 158 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied). A trial court may dismiss a suit under Section 14.003(a) without a hearing
when an inmate fails to file the affidavit required under Section 14.004. Thomas v. Knight , 52 S.W.3d 292, 293 n.2 (Tex. App.

— Corpus Christi 2001, pet. denied) (citing Section 14.003(c));
Williams v. Brown , 33 S.W.3d 410, 411 (Tex. App.

— Houston [1st Dist.] 2000, no pet.).
The trial court did not abuse its dis cretion when it dismissed Appellant ’ s suit. However,
the trial court ’ s dismissal of the suit with prejudice was unwarranted because his error could have been remedied through amendment or more specific pleading. See Thomas v. Skinner , 54 S.W.3d 845, 846

– 47 (Tex. App.

— Corpus Christi 2001, pet. denied) ; see also Hickman v. Adams
, 35 S.W.3d 120, 124

– 25 (Tex. App.

— Houst on [14th Dist.] 2000, no pet.). Thus, we modify the
trial court ’ s order of dismissal by deleting the words “with prejudice” and substituting in their place the words “without prejudice.” As modified, the order of the trial court is affirmed.

ERIC KALENAK
JUSTICE August 31, 2012 Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.